Category Archives: Uncategorized

burden is on Ds to show unprotectability of what they copied

Posted on May 26, 2020 by rtushnet

Compulife Software Inc. v. Newman, 2020 WL 2549505, No. 18-12004, No. 18-12007 (11th Cir. May 20, 2020) The opinion sums up: The very short story: Compulife Software, Inc., which has developed and markets a computerized mechanism for calculating, organizing, and … Continue reading →

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court rejects HomeAdvisor’s First Amendment defense of its misleading ads

Posted on May 26, 2020 by rtushnet

People ex rel. Gascon v. HomeAdvisor, Inc., A154960, 2020 WL 2486970 (Cal. Ct. App. May 14, 2020) HomeAdvisor appealed an injunction barring it from broadcasting certain ads (except with a disclaimer, for a limited time). HomeAdvisor argued that the order … Continue reading →

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Descriptive fair use on a motion to dismiss

Posted on May 26, 2020 by rtushnet

Outhouse PR, LLC v. Northstar Travel Media, LLC, No. 19-cv-05979-NRB (S.D.N.Y. May 15, 2020) A motion to dismiss granted on descriptive use: impressive! Outhouse is a digital media company that runs womenyoushouldknow.net, which “posts editorial content, such as interviews and … Continue reading →

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Navigating NAD’s new fast track program for challenging advertising

Posted on May 13, 2020 by rtushnet

“Navigating SWIFT – An Inside View of NAD’s Fast-Track Process”, presented by Laura Brett, Vice President, NAD, BBB National Programs, and moderated by David Mallen, Co-Chair, Retail and Consumer Brands, Loeb & Loeb LLP. [Despite its cutesy name, I am … Continue reading →

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“100% Natural” might be deceptive as applied to food w/bioengineered ingredients

Posted on May 11, 2020 by rtushnet

Lee v. Conagra Brands, Inc., No. 17-2131 (1st Cir. May 7, 2020) Lee alleged that Wesson’s supposedly “100% Natural” vegetable oil contained GMOs, which she regarded as “quite unnatural,” in violation of Mass. Gen. Laws ch. 93A.  She also alleged … Continue reading →

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A few thoughts on the Booking.com argument

Posted on May 7, 2020 by rtushnet

The Justices were engaged and asking the right questions, despite everyone’s use of “trademark” as a verb to mean “register.” With a putatively generic term the equation is perhaps understandable since if it is unregistrable it will also be unprotectable … Continue reading →

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Forthcoming article: Michael A. Carrier & Rebecca Tushnet, An Antitrust Framework for False Advertising

Posted on May 7, 2020 by rtushnet

Michael A. Carrier & Rebecca Tushnet, An Antitrust Framework for False Advertising, Iowa Law Review, Forthcoming Abstract: Federal law presumes that false advertising harms competition. Federal law also presumes that false advertising is harmless or even helpful to competition. Contradiction … Continue reading →

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circumventing insurance can violate consumer protection law

Posted on May 5, 2020 by rtushnet

Franks v Sykes, No. W2018-00654-SC-R11-CV, 2020 WL 2097544, — S.W.3d — (Tenn. May 1, 2020) I usually try to stick to advertising-related UDAP claims but this practice was just so astonishingly awful that I could not resist.  Plaintiffs were injured … Continue reading →

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Reading List: Greg Klass on false advertising law as private law

Posted on May 5, 2020 by rtushnet

Gregory Klass, FalseAdvertising Law and New Private Law, Forthcoming as: False Advertising Law, in Oxford Handbook of New Private Law (Andrew Gold et al. eds., Oxford Univ. Pr.)  One might reasonably wonder why a chapter on false advertising law appears … Continue reading →

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9th Circuit panel divides on evidence of injury in false advertising case

Posted on May 4, 2020 by rtushnet

VBS Distribution, Inc. v. Nutrivita Laboratories, Inc., — Fed.Appx. —-, 2020 WL 2086557, No. 18-56317 (9th Cir. Apr. 30, 2020) The parties compete in the market for nutritional supplements and television programs. VBS sued for Lanham Act and California state … Continue reading →

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