Category Archives: Uncategorized

5th Circuit holds that inquiries weigh less than lost sales but can still be evidence of actual confusion

Posted on September 11, 2023 by rtushnet

Rex Real Estate I, L.P. v. Rex Real Estate Exchange, Incorporated, — F.4th —-,  2023 WL 5735552, No. 22-50405 (5th Cir. Sept. 6, 2023) Doctrinal evolution is so fascinating! Here, I think we might be starting to see what a … Continue reading →

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Are Burger King menu boards whoppers?

Posted on September 11, 2023 by rtushnet

Coleman v. Burger King Corp., No. 22-cv-20925-ALTMAN (S.D. Fla. Aug. 25, 2023) Plaintiffs alleged that Burger King, through its advertisements and in-store ordering boards, “materially overstates” the size of (and the amount of beef contained in) many of its burgers … Continue reading →

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claim that Adidas NHL jerseys are not “authentic” versions of on-ice jerseys can proceed

Posted on September 7, 2023 by rtushnet

Smith v. Adidas America, Inc., 2023 WL 5672576, No. 6:22-cv-788 (BKS/ML) (N.D.N.Y. Sept. 1, 2023) A non-food case litigated by Spencer Sheehan, just profiled in this New Yorker article. Smith brought claims under NY and other consumer protection laws as … Continue reading →

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Microsoft’s PR agency got Gannett sued by sending it an ad for its Superbowl Ad Meter

Posted on September 7, 2023 by rtushnet

Campbell v. Gannett Co., No. 4:21-00557-CV-RK (W.D. Mo. Aug. 15, 2023) This is a copyright suit against Gannett for advertising-like use of a photo taken by Campbell of NFL coach Katie Sowers; the photo came from a screenshot of an … Continue reading →

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SlimFast products aren’t “clinically proven,” even if the SlimFast plan is, allowing false advertising claim to survive

Posted on September 7, 2023 by rtushnet

McCracken v. KSF Acquisition Corp., 2023 WL 5667869, No. 5:22-cv-01666-SB-SHK (C.D. Cal. Apr. 4, 2023) McCracken alleged that SlimFast food products were falsely advertised as “CLINICALLY PROVEN [ – ] LOSE WEIGHT & KEEP IT OFF” on the front of … Continue reading →

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plaintiff has standing to seek injunctive relief against allegedly falsely advertised penile implant

Posted on September 6, 2023 by rtushnet

Peña v. International Medical Devices, Inc., No. 2:22-cv-03391-SSS-PLAx, 2023 WL 5667568 (C.D. Cal. Apr. 17, 2023) Plaintiff brought the usual California statutory claims against Penuma, a penile implant/procedure, for alleged misstatements about Penuma’s safety and efficacy. Here, we deal only … Continue reading →

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gray marketer’s counterclaims against Toyota survive, but it still must defend itself

Posted on September 6, 2023 by rtushnet

One case, two opinions. Toyota Motor Sales, U.S.A., Inc. v. Allen Interchange LLC, 2023 WL 5206884, No. 22-cv-1681 (KMM/JFD) (D. Minn. Aug. 14, 2023) This opinion deals only with Allen’s counterclaims. Allen distributes Toyota replacement parts, manufactured by authorized suppliers … Continue reading →

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“major flaw”/”tendency to shear” false advertising claims fail

Posted on September 6, 2023 by rtushnet

Shepard & Assoc., Inc. v. Lokring Tech., LLC, 2023 WL 5229803, No. 1:20-cv-02488 (N.D. Ohio Aug. 15, 2023) Lokring sells fittings for pipes and other transfer systems for fluids and gases, as well as tools used to install them. Its … Continue reading →

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Zillow’s “agent” and “other” tabs were literally false where some agents ended up in “other” purgatory

Posted on September 6, 2023 by rtushnet

REX – Real Estate Exchange, Inc. v. Zillow, Inc., 2023 WL 5334389, No. C21-0312 TSZ (W.D. Wash. Aug. 18, 2023) Zillow aggregates listings of real properties that are for sale or for rent. Before January 2021, Zillow’s websites displayed on … Continue reading →

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claims about legality of insurance service are falsifable

Posted on September 6, 2023 by rtushnet

Route App, Inc. v. Heuberger, 2023 WL 5334192, No. 2:22-cv-00291-TS-JCB (D. Utah Aug. 18, 2023) (magistrate) Route is a package tracking company that provides shipping insurance to e-commerce merchants. Heuberger was a Route customer who then launched a competitor, Navidium. … Continue reading →

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