Category Archives: Uncategorized

confusion over confusion: court holds that disparagement can be infringing

Posted on July 22, 2020 by rtushnet

Nutreance LLC v. Primark, LLC, 2020 WL 3892995, No. 4:18-cv-00098-SRC (E.D. Mo. Jul. 10, 2020) “This is a trademark infringement/false advertising case involving competitors in the nutritional-supplements market.” The court holds that the alleged bad conduct is actionable, but unfortunately … Continue reading →

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July 29 Webinar – The McCarthy Series: What the BOOKING.COM Ruling Means for Trademark Law

Posted on July 22, 2020 by rtushnet

I’ll be part of the panel:  On Wednesday, July 29th, at 12 noon Eastern Standard Time (9 AM PST), the McCarthy Institute will host a webinar to discuss the ramifications of the Supreme Court’s decision in USPTO. v. Booking.com B.V. … Continue reading →

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Sue Bee beats suit: “pure” survey not good enough to show deception over trace pesticide amounts

Posted on July 21, 2020 by rtushnet

Tran v. Sioux Honey Assoc., 2020 WL 3989444, No. 17-cv-00110-JLS-SS (C.D. Cal. Jul. 13, 2020)  Tran brought the usual California claims based on Sioux Honey products labeled as “Pure” and “100% Pure,” arguing that the products were mislabeled because they … Continue reading →

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expert can’t substitute for survey evidence (at least w/o experience w/consumer reactions)

Posted on July 21, 2020 by rtushnet

Kurin, Inc. v. Magnolia Medical Technol., Inc., 2020 WL 4049977, No. 18-cv-1060-L-LL (S.D. Cal. Jul. 20, 2020)  A lot going on here in this false advertising case about blood collection devices (one called Steripath); I will omit a lot of … Continue reading →

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court rejects survey indicating consumers think “white chips” have white chocolate

Posted on July 21, 2020 by rtushnet

Cheslow v. Ghirardelli Chocolate Co., No. 19-cv-07467-PJH, — F.Supp.3d —-, 2020 WL 4039365 (N.D. Cal. Jul. 17, 2020)  Plaintiffs brought the usual California claims against Ghirardelli’s “Premium Baking Chips Classic White Chips.” They sought to bolster the plausibility of the … Continue reading →

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does unclean hands require actual deception? answers may differ for TM/false advertising

Posted on July 21, 2020 by rtushnet

Certified Nutraceuticals, Inc. v. Avicenna Nutraceutical, LLC, No. 18-56631, — Fed.Appx. —-, 2020 WL 4037411 (9th Cir. Jul. 17, 2020)  This memorandum opinion comes with a partial dissent calling out the majority’s differential treatment of §43(a)(1)(A) and (B) claims for … Continue reading →

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calling pork “prime” doesn’t misleadingly imply USDA grading

Posted on July 6, 2020 by rtushnet

Davis v. Fresh Market, Inc., 2020 WL 3489369, No. 19-CV-24245-PCH (S.D. Fla. Jun. 26, 2020)  Plaintiffs alleged that defendants violated Florida consumer protection law by misrepresenting, via the name, that their Chairman’s Reserve Prime Pork product had been graded prime … Continue reading →

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flushable wipes injunctive relief class must go, damages class can stay

Posted on July 6, 2020 by rtushnet

Kurtz v. Costco Wholesale Corp., — Fed.Appx. —-, 2020 WL 3480830, Nos. 17-1856-cv, 17-1858-cv (2d Cir. Jun. 26, 2020)  This is a flushable wipes case. The court of appeals decertifies an injunctive relief class under NY law, but allows a … Continue reading →

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NY high court reiterates that “consumer-oriented” is broad, covers statements to thousands of gov’t employees

Posted on July 6, 2020 by rtushnet

Plavin v. Group Health Inc., 35 N.Y.3d 1 (Mar. 24, 2020)  The Third Circuit certified to NY’s highest court whether a plaintiff “sufficiently alleged consumer-oriented conduct to assert claims under General Business Law §§ 349 and 350 for damages incurred … Continue reading →

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Booking.com: validity continues to be disconnected from scope of rights

Posted on June 30, 2020 by rtushnet

U.S. Patent & Trademark Office v. Booking.com B.V., No. 19–46 (Jun. 30, 2020) Kind of what I expected, though maybe a little worse in its disregard of scope issues. Ginsburg writes the majority (Sotomayor concurred and Breyer dissented).  “Generic.com” is … Continue reading →

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