Category Archives: Uncategorized

American Merck and German Merck’s TM battle doesn’t involve covered “advertising injury”

Posted on January 12, 2021 by rtushnet

EMD Millipore Corp. v. HDI-Gerling Am. Ins. Co., 2021 WL 66441, No. 20-cv-10244-ADB (D. Mass. Jan. 7, 2021) Is trademark infringement (or similar) “advertising injury” because a trademark is an advertising idea? I’ve always thought that’s the core of what … Continue reading →

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literal falsity as Q of fact v. law and other important issues in a dueling ladder case

Posted on January 12, 2021 by rtushnet

Wing Enters., Inc. v. Tricam Indus., Inc., No. 17-cv-1769 (ECT/ECW), 2021 WL 63108 (D. Minn. Jan. 7, 2021) After remand because the court of appeals concluded that a materiality survey was wrongly excluded, the court here tries again in this … Continue reading →

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Nominative fair use in the Seventh Circuit: a practical tool

Posted on December 31, 2020 by rtushnet

Data Mgmt. Ass’n Int’l v. Enterprise Warehousing Solutions, Inc., 2020 WL 7698368, No. 20 C 04711 (N.D. Ill Dec. 28, 2020) Without resolving burden of proof issues, the court uses nominative fair use to quickly resolve a case where fair … Continue reading →

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product changes as false advertising: TM may serve as express warranty of formulation & quality

Posted on December 30, 2020 by rtushnet

Starr v. VSL Pharmaceuticals, Inc., No. TDC-19-2173, 2020 WL 7694480 (D. Md. Dec. 28, 2020) This putative class action is related to the longstanding trademark/false advertising litigation between the VSL parties and Claudio De Simone parties, and probably qualifies as … Continue reading →

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business can assert California consumer protection claims against platform

Posted on December 30, 2020 by rtushnet

Gaby’s Bags, LLC v. Mercari, Inc., No. C 20-00734 WHA, 2020 WL 7664455 (N.D. Cal. Dec. 25, 2020) After the court dismissed plaintiff’s Lanham Act false advertising claims against a platform because the plaintiff was a customer and not a … Continue reading →

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no Lanham Act claims, including false advertising, allowed over cannabis

Posted on December 30, 2020 by rtushnet

Shulman v. Kaplan, 2020 WL 7094063, No. 2:19-CV-05413-AB (FFMx) (C.D. Cal. Oct. 29, 2020) The parties compete in the cannabis market, and some defendants formerly worked with Shulman, but that relationship broke down. Shulman sued, alleging four federal claims and … Continue reading →

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Test yourself: would you have approved this “covid-free” claim?

Posted on December 29, 2020 by rtushnet

 From the NYT this weekend (h/t Zachary Schrag): “It’s time to put COVID on hold … and set out for the ultimate escape to the world’s only 6-star hotel, Quintessence Hotel. The sixth star is for our (and Anguilla’s) diligence … Continue reading →

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Another pandemic education case: false advertising fails, contract claim survives

Posted on December 22, 2020 by rtushnet

Bergeron v. Rochester Inst. of Technology, No. 20-CV-6283 (CJS), 2020 WL 7486682 (W.D.N.Y. Dec. 18, 2020) Different district, same result as this case involving Rensselaer Polytechnic. Contract/unjust enrichment claims survive based on allegations that RIT promised in-person learning, but conversion … Continue reading →

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reasonable consumer wouldn’t expect advertised in-person classes in pandemic (but contract claims survive)

Posted on December 18, 2020 by rtushnet

Ford v. Rensselaer Polytechnic Institute, No. 20-CV-470, 2020 WL 7389155 (N.D.N.Y. Dec. 16, 2020) This is a putative class action against RPI for breach of contract, false advertising, and related claims based on the mid-semester pandemic shutdown of early 2020. … Continue reading →

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fake “independent” review sites support claims against underlying advertiser & website operator

Posted on December 17, 2020 by rtushnet

Beyond 79, LLC v. Express Gold Cash, Inc., 2020 WL 7352545, No. 19-cv-06181 EAW (W.D.N.Y. Dec. 15, 2020) Previous discussion. Beyond 79, which buys precious metal etc. online under names including SellYourGold.com, sued a bunch of defendants for false advertising … Continue reading →

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