thorough opinion allows CT’s greenwashing claims against Exxon to proceed

Posted on December 5, 2025 by rtushnet

State v. Exxon Mobil Corp., 2025 WL 3459468, No.
HHDCV206132568S (Conn. Super. Ct. Nov. 26, 2025)

The court allows greenwashing claims against Exxon to
proceed under the Connecticut Unfair Trade Practices Act (CUTPA). The state
alleged a decades-long “systematic campaign of deception” about the impact of
its fossil fuel products on the earth’s climate and a more recent
“greenwashing” campaign designed to bolster its image as an environmental
steward in order to attract consumers.

The state focused particularly on an advertising campaign
that began in 1970 and continued until 2007 or later, including advertorials in
the New York Times nearly every Thursday between 1972 and 2001 with knowingly false
claims such as

• Claiming that “a greenhouse
effect” that could “melt the polar ice caps and devastate U.S. coastal cities”
was a “lie” and a “myth of the 1960s and 1970s.”

• Describing predictions concerning
the impact of global warming as “media hype” creating “an unwarranted sense of
crisis.”

• Promoting the delay of any
response to climate change based on a supposed “lack of scientific data.”

• Using scientific data in a
misleading fashion to suggest that fossil fuels had little to do with global
warming and that “little if any warming” had occurred.

Greenwashing: Exxon allegedly promotes its “minor and
insignificant alternative fuels program to obscure its continued focus on its
fossil fuel business and mislead the public into believing that the defendant
is making serious efforts to address climate change.” The ads also allegedly
mislead consumers into believing that “certain of its fossil-fuel-based
products can help consumers reduce greenhouse gas emissions and improve fuel
economy.” Exxon allegedly “sought to falsely induce purchases and brand
affinity by portraying ExxonMobil as a company working on a solution to climate
change through selling ‘green’ products.”

The materially false claims allegedly included: 

a. that ExxonMobil was uncertain
that climate change was real, occurring or would occur in the future;

b. that ExxonMobil was uncertain
that human activity, including the combustion of fossil fuels, contributed to
climate change;

c. that there was time to wait
before taking action;

d. that there was a balanced debate
amongst scientists about whether climate change was occurring, its relationship
to human activity, and whether its effects would be positive or negative;

e. that ExxonMobil’s research
supported the assertions in (a) – (d).

The state sought penalties based on the number of false ads,
as well as injunctive relief against making the claims and requiring disclosure
of Exxon’s relevant internal research. It disclaimed seeking any damages caused
by Exxon’s contribution to climate change.

Exxon argued that federal law preempted claims seeking
monetary relief for injuries allegedly caused by interstate and international
greenhouse-gas emissions. Although the court followed the framework in City of
New York v. Chevron Corp., 993 F.3d 81 (2d Cir. 2021), finding preemption, it
distinguished the claims at bar. The Chevron case involved claims for
“(1) public nuisance, (2) private nuisance, and (3) trespass under New York law
stemming from the [defendants’] production, promotion, and sale of fossil
fuels. The [plaintiff] requested compensatory damages for the past and future
costs of climate-proofing its infrastructure and property, as well as an
equitable order ascertaining damages and granting an injunction to abate the
public nuisance and trespass that would go into effect should the [defendants]
fail to pay the court-ordered damages.”

Here, the deceptive marketing claims and, to some extent,
the nature of the relief sought counseled against preemption. The state’s CUTPA
claims didn’t amount to state regulation of “the production, sale and use of
fossil fuels,” but were limited to “regulating the associated marketing conduct.”

Indeed, in Connecticut v. Exxon Mobil Corp., 83 F.4th 122,
142 (2d Cir. 2023), the Second Circuit addressed federal removal jurisdiction in
this case in a decision that resulted in remand to state court. The court said,
“Each of the three necessary elements of Connecticut’s deception claim is one
that a court could … resolve[ ] … without reaching the federal common law
of transboundary pollution…. We entirely agree with the district court’s
analysis of this point: Connecticut alleges that ExxonMobil lied to Connecticut
consumers, and that these lies affected the behavior of those consumers. The
fact that the alleged lies were about the impacts of fossil fuels on the
Earth’s climate is immaterial.” So too with the unfairness claim.

On the merits, the complaint stated a claim. Exxon argued
that the statements were made outside of Connecticut. CUTPA defines “trade” and
“commerce” as: “the advertising, the sale or rent or lease, the offering for
sale or rent or lease, or the distribution of any services and any property,
tangible or intangible, real, personal or mixed, and any other article, commodity
or thing of value in this state.” The federal courts have “held that CUTPA does
not require that a violation actually occur in Connecticut, if the violation is
tied to a form of trade or commerce intimately associated with Connecticut, or
if, where Connecticut choice of law principles are applicable, those principles
dictate application of Connecticut law.” Based on the allegations of the
complaint, some of the alleged tortious conduct occurred in Connecticut (advertorials
in papers delivered to Connecticut), and that was enough.

Were the claims made in “trade or commerce”? Lafferty v.
Jones, 229 Conn. App. 487, 327 A.3d 941 (2024), held that Alex Jones’s
defamatory and harassing speech, which was motivated by desire to sell
products, but otherwise unrelated to those products, fell outside the scope of
“trade” and “commerce” in CUTPA. “[N]othing in the defendants’ speech, in and
of itself, concerning the Sandy Hook massacre made any mention of their
products.” That wasn’t the case here. “The speech at issue in the present case
is expressly alleged to be about the defendant’s products, if not specifically
then genetically.” [ed. note: generically?] After all, “advertising” “is not
limited to direct and express solicitations for the sale of a product,” but
includes “[a]ny form of public announcement intended to aid directly or
indirectly in the sale of a commodity….” At least without a more developed
factual record, the court wasn’t going to reject the claims here.

Were the statements falsifiable, or just opinion or true?
Were they immaterial? The complaint adequately alleged deceptiveness; many of
these disputes were for the factfinder. In determining whether a claim is
falsifiable or opinion, Connecticut requires “analysis of three basic,
overlapping considerations: (1) whether the circumstances in which the
statement is made should cause the audience to expect an evaluative or
objective meaning; (2) whether the nature and tenor of the actual language used
by the declarant suggests a statement of evaluative opinion or objective fact;
and (3) whether the statement is subject to objective verification.”

“It may be that some of the statements referenced in counts
one and two of the complaint are expressions of opinion but … this court is
being asked to make that judgment based only on the allegations of the
complaint.” The complaint sufficed, especially given allegations that Exxon’s
internal research disagreed with its ads. Interpretation of CUTPA is supposed
to be guided by FTC interpretations, and the FTC has long held that “[c]laims
phrased as opinions are actionable… if they are not honestly held, if they
misrepresent the qualifications of the holder or the basis of his opinion or if
the recipient reasonably interprets them as implied statements of fact.”

The disclosure-based claims also survived because, even
though there’s no duty to disclose in many circumstances, one who decides to
speak may not omit material facts if the omission misleads reasonable consumers
about the import of the affirmative claims, and that was alleged here.

And materiality was properly alleged, given that materiality
is a lower standard than reliance:

The FTC’s publication of the Green
Guides reflects a recognition that environmental issues are a matter of
interest and concern to consumers and that, therefore, the defendant’s alleged
greenwashing efforts are material, at least potentially so. It is fair to be
skeptical that consumers would choose to purchase gasoline from the defendant
based on an erroneous impression that the defendant is proactively and
earnestly engaged in efforts to reduce greenhouse gas emissions through the
development of alternative energy sources and other more eco-friendly fossil
fuel products. It is not a question of reliance by the consumer, however, only
a question whether the consumer is influenced by the defendant’s allegedly
misleading environmental marketing. That is a question of fact, not a question
of law.

Unfairness claims survived for much the same reasons. CUTPA’s
unfairness standard is taken from the FTC:

(1) [W]hether the practice, without
necessarily having been previously considered unlawful, offends public policy
as it has been established by statutes, the common law, or otherwise—in other
words, it is within at least the penumbra of some common law, statutory, or
other established concept of unfairness; (2) whether it is immoral, unethical,
oppressive, or unscrupulous; (3) whether it causes substantial injury to
consumers, [competitors or other businesspersons]…. All three criteria do not
need to be satisfied to support a finding of unfairness. A practice may be
unfair because of the degree to which it meets one of the criteria or because
to a lesser extent it meets all three….

Did the First Amendment bar the claim? Not at this stage.
Commercial speech “can include material representations about the efficacy,
safety, and quality of the advertiser’s product, and other information asserted
for the purpose of persuading the public to purchase the product.” And “[a]dvertisers
should not be permitted to immunize false or misleading product information
from government regulation simply by including references to public issues.” Interestingly,
the court relied heavily on Jordan v. Jewel Food Stores, Inc., 743 F.3d 509
(7th Cir. 2014) (an ad congratulating Michael Jordan on his career and bearing
store branding, but not explicitly proposing a commercial transaction or
mentioning a specific product, was commercial speech), and Kasky v. Nike, Inc.,
45 P.3d 243 (2002) (Nike’s advertorials and letters to the editor claiming fair
labor practices were commercial speech). Jordan: “An advertisement is no
less ‘commercial’ because it promotes brand awareness or loyalty rather than
explicitly proposing a transaction in a specific product or service.”Kasky:
“speech is commercial if the speaker is a commercial person or entity, the
intended audience is likely to be consumers of the speaker’s products or
services, and the content of the speech includes ‘representations of fact about
the business operations, products or services of the speaker… made for the
purpose of promoting sales of, or other commercial transactions in, the
speaker’s products or services.’”

In dismissing cert in Kasky as improvidently granted—basically
because they couldn’t figure it out—Justice Stevens wrote:

Whether similar protection [as in defamation
law] should extend to cover corporate misstatements made about the corporation
itself, or whether we should presume that such a corporate speaker knows where
the truth lies, are questions that may have to be decided in this litigation.
The correct answer to such questions, however, is more likely to result from
the study of a full factual record than from a review of mere unproven
allegations in a pleading. Indeed, the development of such a record may
actually contribute in a positive way to the public debate.

“Unfortunately, in the twenty-two years that followed the
Court’s decision to dismiss the writ of certiorari in Kasky, it still
has not addressed the ‘important,’ ‘difficult’ and ‘novel’ issues presented.”
Preach!

Anyway, Exxon’s conclusory claim that the statements
described in the complaint do not propose commercial transactions were insufficient.
“[T]he mere presence of non-commercial information in an otherwise commercial
presentation does not transform the communication into fully protected speech.”

Nor did the Noerr-Pennington doctrine, which protects
the right to petition the government through lobbying, litigation, or other
advocacy including publicity campaigns, bar the claims at this stage.

The court also rejected challenges to various smaller bits
of the complaint, such as the state’s claim for relief seeking “an order that
ExxonMobil fund a corrective education campaign to remedy the harm inflicted by
decades of disinformation, to be administered and controlled by the State or
such other independent third party as the Court may deem appropriate.” This
wasn’t government-compelled speech or compelled subsidy of private speech; the
funds would be used by the state to pay for corrective education.

Restitution/disgorgement: the state sought “payment of the
monetary value of the defendant’s gain” to the state, acting on behalf of the
citizens of the state. “[W]hen a public entity seeks disgorgement it does not
claim any entitlement to particular property; it seeks only to deter violations
of the [ ] laws by depriving violators of their ill-gotten gains.” This was a proper
request.

Can the state reach decades back in its claims?  CUTPA’s three-year limitations period
applicable to private enforcement actions does not apply to actions brought by
the state. “The defendant presents scant authority in support of its
proposition that an egregious delay by the sovereign violates due process.” It’s
up to the legislature, not the judiciary, to abolish or modify the doctrine of
nullum tempus (no limitations period runs against the state). Even if the court
agreed that, at some point, nullum tempus must yield to due process, it couldn’t
decide a laches-equivalent defense on a motion to strike. “The defendant is not
precluded from raising due process concerns to temper the court’s consideration
of the monetary relief sought by the plaintiff if the case reaches that
juncture.”

from Blogger http://tushnet.blogspot.com/2025/12/thorough-opinion-allows-cts.html

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wrongfully claiming Amazon ASIN might be false advertising, even with foreign TM rights

Posted on December 5, 2025 by rtushnet

Best Glide Aviation Survival Equipment, Inc. v. Tag-Z, LLC, No.
1-23-cv-1080-DAE, 2025 WL 3454210 (W.D. Tex. Aug. 20, 2025)

This case involves an alleged abuse of Amazon’s system to keep
out legitimate competitors. Amazon is so big it can help other, smaller
would-be monopolists! The parties compete to sell military style P-38 and P-51
can openers, stamped with “U.S. Shelby Co.” Best Glide alleged that U.S. Shelby
openers were originally manufactured by Mallin Shelby Hardware until 1983, when
the company dissolved, and since then, they have been manufactured,
distributed, and sold by various entities.

Best Glide alleged that it began such sales in 2009; that it
was well known in the community for making such sales; and that the public has
come to associate it as a provider of U.S. Shelby openers on its own website
and on Amazon’s. (Seems unlikely, but I don’t think it needs to be true for
Best Glide to be in the right here, given what comes next.)

Each product on Amazon has an Amazon Standard Identification
Number (ASIN), “akin to a serial number.” Amazon’s Brand Registry Program
allows a seller to become a brand owner by registering a brand name, registered
trademark, and/or trademark application into the program. “Once entered in the
program, a brand owner controls both the content of an ASIN and who is listed
as a seller on an ASIN.” With a generic ASIN, no one seller controls the
listing or who may be listed as a seller.

Tag-Z filed for, but later withdrew, a trademark application
for “US Shelby.” It also filed trademark applications for “P-38” and “P-51.” Best
Glide’s opposition to those applications is suspended pending resolution of
this case. Tag-Z possesses German trademark registrations for “P-38,” “P-51,”
“US SHELBY,” and “US SHELBY CO.” It allegedly used these to enter the Brand
Registry Program and block US sales.

Specifically, Amazon informed Best Glide that Tag-Z had
registered one or more of its marks in the program and thus was now the brand
owner for the previously generic ASINs. This allegedly led to a marked decline
in Best Glide’s sales.

Stretching the definition of “commercial advertising or
promotion” a little, but not in any way I find troubling, the court found that Best
Glide stated a claim for false designation of origin/association/endorsement
and unfair competition/false advertising under the Lanham Act and coordinate
state law claims.

The court lumped false designation of origin, association,
or endorsement together under §43(a)(1)(A), then applied (B) standards to the
claim, including materiality. (This is really mostly a (B) claim.)

The (A) claim was predicated on the idea that, by exploiting
the Brand Registry loophole, Tag-Z was able to misrepresent that associated
reviews should be attributed to it, when they in fact should be attributed to Best
Glide; this was plausibly material “since it can be inferred that customers
will be influenced by reviews believed to be associated with Defendant when
they are in fact attributable to Plaintiff.”

Likewise, the (B) claim survived because it was plausible
that the ASINs are commercial advertisements about the good’s designation of
origin, association, or endorsement. They were plausibly (1) commercial speech,
(2) for the purpose of soliciting business, and (3) sufficiently disseminated
to a relevant public audience. ASINs are (as alleged) not only serial numbers,
but the shorthand method of describing a product webpage. “[G]iven that
consumers can see the associated ASINs on the Products’ webpage listing, the
Court finds Plaintiff has pled the speech is sufficiently disseminated to the
relevant public audience.” [Yeah, but is it plausible they’re paying attention?
I think this could also be analyzed as a series of commercially motivated false
statements to Amazon, which is such a big intermediary that misstatements to it
are sufficiently disseminated to a relevant audience.] And “Defendant’s
excluding other sellers from using the ASINs and thereby positioning itself to
consumers as the exclusive seller of these Products with reviews which should
be attributed to Plaintiff is sufficient to plead a misrepresentation.” [Note
the one-from-column-A-and-one-from-column-B approach here: the commercial
speech is the ASINs, but then the misrepresentations come in the reviews
associated with the ASINs. I suppose this is analogous to situations where a
pharmaco claims “genericity” for something that isn’t bioequivalent, etc.—the ASIN
is sufficiently concentrated information, in this context, that it functionally
contains the statements associated with it, here the reviews.]

The similar state law claims survived, but tortious
interference with contract failed because the complaint (somehow?) didn’t
allege the existence of a contract between Amazon and Best Glide. Moreover,
Best Glide failed to allege that any contract between itself and Amazon
obligated Amazon to allow it to sell products under specific ASINs. “In the
absence of a contract requiring that obligation, Plaintiff cannot allege such a
contract was breached.” Likewise, tortious interference with prospective
economic relations failed for want of alleged interference with a specific
prospective contract or client relationship.

Business disparagement also failed because no allegedly
false statement was “about” Best Glide, much less defamatory.

from Blogger http://tushnet.blogspot.com/2025/12/wrongfully-claiming-amazon-asin-might.html

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“abortion pill reversal” proponents engaged in noncommercial speech, 2d Circuit agrees for PI purposes

Posted on December 5, 2025 by rtushnet

National Institute of Family and Life Advocates v. James,
— F.4th —-, 2025 WL 3439256, No. 24-2481-cv (2d Cir. Dec. 1, 2025)

Unlike the similar
California proceeding, the district court in NY granted a preliminary injunction
against enforcement of consumer protection law against evidence-free “abortion
reversal” claims, because there weren’t allegations of commercial benefit from
promoting those claims. “The NIFLA plaintiffs are non-profit, faith-based
organizations that have made, and seek to continue to make, statements
regarding abortion pill reversal.” At this stage, they were likely to succeed
on their First Amendment claim because their APR-related statements are
noncommercial speech. The statements were religiously, not economically,
motivated; the NIFLA plaintiffs didn’t provide APR and only refer individuals
to third-party providers who could then administer APR; and they received no
remuneration for their services, including no referral fees or commissions. The
NIFLA plaintiffs didn’t charge for access to APR “information” or any of their
pregnancy-related or parenting services.

“To hold otherwise could potentially subject a sweeping
range of non-profits to regulation of their speech for providing the public
with information and resources concerning critical services.” E.g., abortion information,
LGBT rights groups in states that ban in-state gender-affirming care, or “a
group that matches immigrants with organizations providing access to
employment, English language classes, or immigration legal services.” “Expanding
commercial speech in a way that covers public statements made by these types of
organizations would push the commercial speech doctrine far beyond its ‘core’ of
regulating commercial transactions.”

The AG argued that the speech should be considered
commercial because “someone must bear the cost” of APR “be it insurance, the
medical provider, or a charity,” and that the NIFLA plaintiffs offer services
in the “stream of commerce” that have commercial value. “However, this would be
true of any non-profit providing information, free services, and access to
third-party providers; those services will inevitably have some commercial
value and eventually someone will have to be paid for them.”

The AG also argued that “consumers will likely be led to
believe that the NIFLA plaintiffs will arrange for them to receive [the APR
protocol] because their intended statements invite consumers to access a
network of physicians who are willing and able” to provide it, thus making the
statements analogous to ads for other medical services. But the cases cited by
the AG involved medical procedures or products offered in exchange for money. The
NIFLA plaintiffs allege that they receive no direct or indirect payment for the
services they provide or referrals they make. “Moreover, there is no evidence
in the record, at this stage of litigation, to suggest that the NIFLA
plaintiffs gain other types of economic benefits by engaging in this speech,
such as an increased customer base or a capital increase through fundraising.”
[If soliciting for nonprofits is noncommercial speech, why would ordinary
fundraising be commercial speech as to statements about what the nonprofit does?]

The court emphasized that “no factor, including the
speaker’s motivation, is dispositive to the noncommercial speech inquiry.” But
it wasn’t just ideological motivation at issue here: the NIFLA plaintiffs were
actually not providing or charging for services or getting direct or indirect
compensation for their referrals.   

from Blogger http://tushnet.blogspot.com/2025/12/abortion-pill-reversal-proponents.html

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“ambiguity” in consumer protection cases is something different from “ambiguity” in Lanham Act cases: the case of “Naturally Derived”

Posted on December 1, 2025 by rtushnet

Kent v. Conopco, Inc., 2025 WL 3296002, No. 25-cv-03660-JCS
(N.D. Cal. Nov. 26, 2025)

The court allows a claim against “Naturally Derived”
personal care products to proceed. “There is no asterisk on the front label
linking the claim to a definition elsewhere on the front or back label; nor is
there a definition of the term ‘Naturally Derived’ on the front label.” The
back label does purport to describe what “naturally derived” means.” E.g.: Love
Beauty & Planet Plant-Based Vanilla Body Wash’s back label says, ‘92% of
our formula is naturally derived, meaning it’s unchanged from nature or keeps
over 50% of its original structure after some processing. This includes water
and ingredients from plant, mineral and fermentation sources.’ ”

For some of the products, “naturally derived ingredients” in
the list of ingredients are denoted with an asterisk. Plaintiffs allegedly
falsely or misleadingly identify synthetic ingredients as naturally-derived,
including cocoamidopropyl betaine, sodium lauroyl isethionate, sodium methyl
cocoyl taurate lauric acid, citric acid, and stearamidopropyl dimethylamine,
cetearyl alcohol, and behentrimonium chloride. Many of these ingredients are
allegedly non-naturally occurring chemicals made by chemically modifying
naturally-occurring plant oils.

The products are allegedly “predominantly composed of
ingredients produced using industrial chemical processes.” By way of example,
the complaint alleged that, “of the twenty (20) ingredients listed for the Dove
Men + Care Eucalyptus and Birch 2-in-1 Shampoo and Conditioner, fourteen (14)
are industrially-produced chemicals that most consumers would not identify as ‘natural’
or ‘naturally derived,’ including one (citric acid) produced using industrial
fermentation processes.” Plaintiffs alleged that “[s]imilar analyses hold true
for all the ‘X% Naturally Derived’ Products.” They also alleged that the claims
would be false even if they were based on ingredient weight.

Conopco allegedly used the British Standards Institute’s ISO
16128 to make its claims. That standard allegedly “defines ‘derived natural
ingredients’ as ‘cosmetic ingredients of greater than 50 % natural origin, by
molecular weight, by renewable carbon content, or by any other relevant
methods, obtained through defined chemical and/or biological processes with the
intention of chemical modification.’ ” But, plaintiffs alleged, this standard
is a proprietary standard that is not available to the public and thus, “for
all intents and purposes, the public is entirely ignorant of how [Conopco]
calculates the percentage of ingredients that is naturally derived/natural
origin and what [Conopco] is communicating when it makes the naturally
derived/natural origin claims.”

The standard allegedly expressly states that it “is not
designed for use in labeling and product communications.” Indeed, as alleged, “ISO
16128’s definition of ‘natural origin index’ is very complicated and entirely
beyond the ability of an ordinary consumer to understand.” It is allegedly not
a government standard, but instead, “was designed solely by cosmetic industry
scientists, without involvement of any consumer advocates or persons familiar
with consumer advertising” with the apparent purpose of “provid[ing] an
expansive definition [of] ‘natural origin’ to encourage manufacturers to use
‘natural’ materials as ingredients for manufacturing.” Plaintiffs further
alleged that ISO 16128 is “inappropriate for use in labeling because it does
not require uniform calculations”: users can include or exclude added water at
will. They can also use any of three criteria: “molecular weight,” “renewable
carbon content”, or “any other relevant methods” to calculate percentage, but the
standard does not define “renewable carbon content,” nor what the “any other
relevant methods” may be. The complaint also pled that “[l]aypeople are not
versed in assessing molecular weights.”

They brought the usual
California claims.

The court found the labels to be plausibly deceptive. In the
9th Circuit, consumer protection claims can be maintained if the
front label is plausibly misleading—that is, if it’s plausible that a
reasonable consumer would conclude that the front label contains all the
relevant information and believe a false claim as a result. If a reasonable
consumer who cared about the fact at issue would necessarily conclude that they
needed to look at the back label to clarify matters, though, and the back label
clears things up, the claim is merely ambiguous and not misleading.

This is a different framing of “ambiguity” than Lanham Act
“ambiguity,” though it may not produce hugely different results in practice. A
front label is not ambiguous under consumer protection law merely because it
has more than one plausible meaning (the Lanham Act standard). “Nature Fusion” is
fatally ambiguous: “so devoid of any concrete meaning that there was
nothing ‘from which any inference could be drawn or on which any reasonable
belief could be based about’” a personal care product’s ingredients. “[A] front
label is ambiguous when reasonable consumers would necessarily require more
information before reasonably concluding that the label is making a particular
representation. Only in these circumstances can the back label be considered at
the dismissal stage.” “[F]ront-label ambiguity is determined not by whether a
consumer ‘could’ look beyond the front label, but whether they necessarily
would do so.” And context can also matter to whether something is plausibly
misleading, such as one’s background knowledge about the exotic product Manuka
honey, and whether the product is a specialty one or would be bought by a busy
consumer with kids in tow.

The consumer protection concept of “ambiguity” therefore determines
whether a claim can be pursued under state law at all, whereas the
Lanham Act concept uses ambiguity as a screen for whether evidence of actual
consumer response is required, or whether proof of falsity alone will show
deceptiveness; that is, a Lanham Act-ambiguous claim can still be litigated and
proved deceptive. By contrast, consumer protection ambiguity is more like a
puffery defense: if a claim is so mushy that it doesn’t have a specific enough
meaning to be factual on its own (without consulting the back label), then it’s
too ambiguous to sue over.

The risk—and I do think it’s a significant one—is that
courts might use “ambiguity” the same way across regimes despite the different
meaning and function of the concept in the two areas. I have argued
that courts should not be so rigid in their use of the literal/implicit falsity
divide in Lanham Act cases, and this development in consumer protection law
adds to the reasons to do so: ambiguity in consumer protection law (understood
broadly to include the Lanham Act) should be a single concept.

Back to the case at bar: This front label was plausibly
misleading, so the court declined to consider the back label at this stage. Plaintiffs
alleged that a reasonable consumer would understand from the phrase “x%
naturally derived” that the specified percentage of the product, whether
evaluated by weight or by the number of ingredients, is made of ingredients
that are not synthetic but that in fact, because of the inclusion of synthetic
ingredients in the definition of “naturally derived” used by Conopco, the
percentage of the product that is made from synthetic ingredients is much
higher than the label suggests. It was indeed plausible that a reasonable
consumer would believe that “naturally derived” means non-synthetic. In some
cases, qualifying language indicating the percentage of the product that was
plant-based can be enough to avoid misleadingness—but that depends on the
plaintiff’s theory of the case. Where the plaintiff’s theory isn’t about “100%
natural” or similar claims, the percentage doesn’t help if it’s an allegedly
false percentage. Additionally “this case involves everyday products and not
the niche product at issue in the Trader Joe’s case [Manuka honey] that
resulted in a higher standard of care from the reasonable consumer.”

Even considering the back labels, they didn’t resolve any
ambiguity in a way that avoided plausible misleadingness, given the plaintiffs’
allegations that the definition Conopco used was unsuitable and misleading.

However, plaintiffs’ omission-based claims failed. (They
were a repackaged “the back label definition is bad” theory.)

The court also refused to reject a UCL unfairness theory at
this stage based on the allegation that Conopco’s conduct violates FTC
regulations and policy set forth in the Green Guides.

However, the common law fraud and negligent
misrepresentation claims fail to state a claim under California’s economic loss
rule.

from Blogger http://tushnet.blogspot.com/2025/12/ambiguity-in-consumer-protection-cases.html

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“unfair competition” CGL insurance exclusion applies only to competitor claims, not consumer claims

Posted on December 1, 2025 by rtushnet

Athena Cosmetics, Inc. v. Great American E&S Ins. Co.,  2025 WL 3304392, No. 2:24-cv-08010-AH-AGRx
(C.D. Cal. Nov. 24, 2025)

Three underlying putative class actions targeted Athena’s
sale of “lash enhancement serums from Athena that contained compounds found in
prescription drugs and were known to cause adverse side effects to the face and
eye area.” They alleged “false, misleading, unfair, and deceptive sale of
beauty products without disclosing dangerous risks and side effects of the
products’ key ingredient” and “unfair competition or unfair or deceptive acts
or practices” in violation of various states’ consumer protection statutes.
Although the underlying complaints alleged that the plaintiffs experienced
“physical impact” on their face and eye area, they explicitly did “not seek to
recover for physical injuries.”

Great American denied a duty of coverage to its insured,
Athena, under a Commercial General Liability Policy stating that Great American
“will pay those sums that [Athena] becomes legally obligated to pay as damages
because of ‘bodily injury’ … to which this insurance applies” and “will have
the right and duty to defend [Athena] against any ‘suit’ seeking those damages.”
The Policy defines “bodily injury” to mean “injury, sickness, or disease
sustained by a person, including death of a person,” as well as “mental
anguish, mental injury, or shock, if directly resulting from physical injury,
sickness, or disease to that person.” There’s also an exclusion for any “Claim
or Suit Alleging Infringement of Intellectual Property or Violation of Laws
Concerning Unfair Competition or Similar Laws,” which excludes coverage for
bodily injury or property damage “alleged in any claim or ‘suit’ that also
alleges any: … (2) violation of any statute, common law, or other laws or
regulations” “concerning unfair competition, antitrust, restraint of trade,
piracy, unfair trade practices, or any similar laws or regulations.”

Two questions: First, did the underlying lawsuits create a
duty to defend, or did they not claim “bodily injury”? The court’s answer:
there was a duty to defend given that the underlying complaints alleged such
injury, even though they disclaimed recovery for damages for physical injury
(presumably to allow a bigger class). An “insured is entitled to a defense if
the underlying complaint alleges the insured’s liability for damages
potentially covered under the policy, or if the complaint might be amended to
give rise to a liability that would be covered under the policy.” In other
words, under California law, “the insurer’s duty is not measured by the
technical legal cause of action pleaded in the underlying third-party
complaint, but rather by the potential for liability under the policy’s
coverage as revealed by the facts alleged in the complaint or otherwise known
to the insurer.” The insurer cannot “duck coverage simply because the
complainants sought the tactical advantage of bringing their claims through a
class action.” In addition, the complaint also alleged mental distress, which
was covered under the policy’s broad definition of physical injury.

Second, was a noncompetitor consumer protection suit one for
“unfair competition” or “unfair trade practices”? The court’s answer: no. The
exclusion, which must be interpreted narrowly, was focused on competitor-type
behavior, got its tenor from “antitrust,” “restraint of trade,” and “piracy.”
Consumer protection claims brought by consumers weren’t excluded. Great
American argued that nothing in the exclusion limits its application to
disputes among business competitors. But Standard Fire Ins. Co. v. Peoples
Church of Fresno, 985 F.2d 446 (9th Cir. 1993), interpreted “unfair
competition” in the context of a CGL policy and described common law unfair
competition as “synonymous with the act of ‘passing off’ one’s goods as those
of another,” limiting the term to “the common law tort which includes
competitive injury as an element,” at least where it was listed alongside of “libel,
slander, defamation, violation of right of privacy, piracy, misappropriation of
idea, and infringement of copyright, title or slogan.” And “piracy” was also in
the policy here. Thus, none of the “similar laws or regulations” listed along
with “unfair competition” in this policy referred to conduct directed at
consumers.

The “objectively reasonable expectations of the insured”
would not consider “unfair competition” to broadly exclude consumer
fraud-related claims.

from Blogger http://tushnet.blogspot.com/2025/12/unfair-competition-cgl-insurance.html

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court of appeals refuses to create right of publicity for houses, over dissent

Posted on November 26, 2025 by rtushnet

Dihno v. Netflix, Inc., 2025 WL 3280834, B335652 (Cal. Ct.
App. Nov. 25, 2025)

Over a partial dissent, the court of appeals affirms the
rejection of various claims, including CLRA
and FAL claims, against Netflix based on its use of a photo of plaintiffs’
house in an ad for Buying Beverly Hills, one of its reality shows, which
depicts the operations of a real estate firm. “Plaintiffs’ home is on a
ridgeline in the Hollywood Hills. The property is guarded by a private gate and
the home is not visible from any nearby street. The closest publicly accessible
vantage point from which the home can be seen is 1,034 feet away.” The photo
was taken by a nonparty and published on Shutterstock, then licensed for the
ad. The photographer “allegedly took the photo without Dihno’s knowledge or
consent using a drone or other specialized photography equipment. The photo
depicted interior and exterior details of the home not visible from any public
location, including the ‘room layout’ and the entrances and exits. The original
photo allegedly depicted plaintiffs’ silhouettes, but was cropped to remove
them for the ad. As alleged, both Netflix and its ad agency knew that the home
was not associated with or depicted in Buying Beverly Hills.

People allegedly began to visit plaintiffs’ home “on a daily
basis” asking to see it and claiming they learned it was for sale through the
Buying Beverly Hills advertisement, including a woman who demanded to enter,
refused to leave, and was arrested. “Other people attempted to open plaintiffs’
front gate and climb over their fence.” Plaintiffs received calls “more than
once daily” from real estate agents who sought to represent the family in
selling the home. (OMG! Me too!) This caused plaintiffs harm to their mental
health, reputations, and relationships with neighbors. They spent approximately
$20,000 on security measures.

Plaintiffs sued for: (1) invasion of privacy, based on
theories that Netflix intruded upon plaintiffs’ seclusion and portrayed them in
a false light; (2) negligent infliction of emotional distress (NIED); (3)
intentional infliction of emotional distress (IIED); (4) Consumer Legal
Remedies Act (CLRA) violations; and (5) violation of the California False
Advertising Law (FAL).

Invasion of privacy: Right of seclusion: This requires that
a defendant must intentionally intrude into a place, conversation, or matter as
to which the plaintiff has a reasonable expectation of privacy, and the
intrusion must occur in a manner highly offensive to a reasonable person.” The state
constitutional cause of action for invasion of privacy has “largely parallel” elements.

Netflix didn’t do the intruding; the question was whether it
“ratified” the intrusion when it published the ad. “Ratification is the
voluntary election by a person to adopt in some manner as his own an act which
was purportedly done on his behalf by another person, the effect of which, as
to some or all persons, is to treat the act as if originally authorized by him.”
But there were no allegations that the photographer acted on Netflix’s behalf.
Indeed, the photo was on Shutterstock, from which any member of the public
could license the photo, contradicting any argument that the photographer acted
for Netflix. Moreover, “[r]atification can only occur where the person
ratifying has full knowledge of the facts.” Netflix was not alleged to have
knowledge. 

What about the people who intruded, allegedly caused by
Netflix? Intentional intrusion doesn’t cover third party intrusions except when
vicarious liability is possible—that is, when the intruders are defendant’s
employees. Although an ad soliciting people to come to another’s home for sex
and providing the address might show an intent for third parties to harass the
plaintiff, that’s not what happened here.

False light: This requires a portrayal that would be “highly
offensive to a reasonable person, and where the defendant knew or acted in
reckless disregard as to the falsity of the publicized matter and the false
light in which the plaintiff would be placed.” “Yet, on its face, the
advertisement depicted a home, not the plaintiffs; and it included no personal
information from which any viewer could identify them.” Even if third party
real estate agents somehow associated them with the show, “the complaint does
not allege, and plaintiffs fail to explain, how association with a television
show involving real estate is highly offensive to a reasonable person. As a
matter of law, we conclude it is not.” Although they alleged that the ad
publicly disclosed the entrances, pathways, and floor layout of their home,
there was no allegation of falsity.

Statutory invasion of privacy: Plaintiffs invoked a
California law providing that any person who enters “the airspace above the
land of another person … in order to capture any type of visual image … of
the plaintiff engaging in a private, personal, or familial activity and the
invasion occurs in a manner that is offensive to a reasonable person” is liable
for physical invasion of privacy. But there were no specific factual
allegations that could support this statutory claim with respect to
offensiveness.

CLRA and FAL: No standing. Standing requires economic injury
or damage which “ ‘was the result of, i.e. caused by,’ ” the CLRA or FAL
violation. For causation, plaintiffs must demonstrate that they “ ‘ “actual[ly]
reli[ed]” ’ on the ‘ “allegedly deceptive or misleading statements” ’ and that
it ‘ “was an immediate cause” ’ ” of their injuries. But plaintiffs didn’t
allege reliance, only harm from alleged perceived affiliation with Buying
Beverly Hills.

Plaintiffs argued that reliance was unnecessary because
their CLRA and FAL claims do not sound in fraud, but they obviously were. Plus,
CLRA remedies are available only to a “consumer,” meaning “an individual who
seeks or acquires, by purchase or lease, any goods or services ….” Although
plaintiffs alleged that they purchased goods generally, “we disagree that the
CLRA can be interpreted to permit any person who purchases goods to seek relief
from any entity that publishes misleading advertisements.”

NIED: “[A]s a general matter, there is no duty to act to
protect others from the conduct of third parties.” There were no allegations
that plaintiffs had a special relationship with Netflix, and under the facts
alleged, Netflix did not affirmatively create any peril. The ad didn’t encourage
third parties to visit the home, trespass on the property, or harass the
homeowners. It didn’t even disclose plaintiffs’ address, “nor any street or
landmark from which the home’s location could be feasibly discerned.” Moreover,
the complaint alleged, plaintiffs’ home “is not even located in Beverly Hills,”
meaning that anyone searching for the home in the television show’s namesake
city would be looking in the wrong place.

IIED: Netflix allegedly posted the ad on its own home page
and on other unspecified websites and publications. The complaint didn’t allege
that plaintiffs themselves were Netflix subscribers, nor that they were the
target of any form of the ad, nor that Netflix intended to encourage third
parties to visit.

IIED typically requires conduct directed at the plaintiff, but
there’s an exception “when the defendant is aware, but acts with reckless
disregard of the plaintiff and the probability that [its] conduct will cause
severe emotional distress to that plaintiff.” This exception applies only when
the defendant’s conduct “was done with knowledge of [plaintiffs’] presence and
of a substantial certainty that they would suffer severe emotional injury.” The
complaint didn’t and couldn’t plausibly allege that.

Private nuisance also failed for similar reasons.  

A concurrence defended the majority’s reluctance to expand
the intentional tort of intrusion “in a sweeping and unwarranted way”:

In search of a legal theory,
appellants contend they “should have some right under the law to limit
Netflix’s exploitation of their home, life, and privacy.” Appellants’ claim
that Netflix “exploit[ed]” “their home” sounds suspiciously like a proposed right
of publicity for houses. For good reason, there is no such tort.

 Given the causal
chain alleged, liability under this new theory would be

breathtaking in its scope. Let’s
say the Los Angeles Times decides to do a piece on “five houses in Los Angeles
that look like they came out of a fairy tale.” You know—with those cute,
curving brown roofs. People read the piece and think, “Wow, I’d like to see
that.” They drive by, or walk by, the houses. Maybe some even knock and ask to
come inside. Let’s say lots of people do that. Let’s say the “publisher” of the
piece is not the Los Angeles Times but an influencer on Instagram who’s
interested in architecture. Can the owners or residents of those homes sue for
intrusion? One can imagine myriad other examples. And—according to
appellants—someone who merely licenses a photograph from a stock footage agency
and publishes it can be socked with a lawsuit as well if people show up to
check out the house in the photo.

Nor were ads without constitutional protection.

Judge Edmon partially dissented, arguing that there should
be an intrusion claim here, relying on the flexibility and expansiveness of the
privacy torts. “[A]t least a few cases have recognized claims for intrusion
where defendants published information about the plaintiffs that caused third
parties to intrude into their private spaces.” Unsurprisingly, these are cases
when harassers published solicitations claiming that women wanted sex and third
parties showed up in reliance on the false claims. But the dissent would
generalize to “defendants’ publication of information that created interest in
the plaintiffs and led to foreseeable physical intrusions by third parties that
significantly disturbed the plaintiffs’ solitude.” That’s not
foreseeability—that’s deception and intent to harass. But the dissent would not
require intent to harm, only intent to intrude. [I’m still not seeing intent to
intrude here.] And it didn’t matter that Netflix didn’t publish an address or
names, because, in a previous case, the ad used the woman’s name but not her
address and the third parties were able to find her address by using the phone
directory. Because “many third parties allegedly were readily able to discover [the
address here], presumably by using widely available Internet or artificial
intelligence tools, “I therefore would leave it to the trier of fact to decide
whether Netflix’s use of the photograph of plaintiffs’ home in its advertising,
even without an accompanying address, was sufficiently offensive to create liability
for intrusion.” And subsequent publication can matter to whether an intrusion
is particularly invasive.

Plaintiffs do not suggest—and I
would not conclude—that simply taking a photograph of the outside of
plaintiffs’ house was an actionable invasion of privacy. But that is not all
plaintiffs allege. They allege that the photograph was broadcast to hundreds of
millions of viewers in connection with a television series about the sale of
upscale real estate to the rich and famous. In an era of obsessive interest in
fancy homes and fancy people—coupled with Internet tools that make it a simple
matter to link an image of a property to an address—I believe a reasonable
trier of fact could, in appropriate circumstances, conclude that Netflix’s
advertisement gave rise to a cause of action for intrusion.

Because this was an ad, there were lesser constitutional
concerns than with other applications of the privacy torts.

As for the anti-drone photography statute, the dissent would
still have rejected the claim, albeit for a different reason: the dissent
accepted the allegations that the drone must have flown too close because it “captured
exterior and interior details of the house that that are not visible from any
public location,” which could be “offensive to a reasonable person” within in
the meaning of the law. Nonetheless, there was no “visual image, sound
recording, or other physical impression of the plaintiff engaging in
a private, personal, or familial activity,” as further required by the
statute.

The dissent would also have found private nuisance properly
alleged.

 

from Blogger http://tushnet.blogspot.com/2025/11/court-of-appeals-refuses-to-create.html

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once again, injury requirement defeats a false advertising claimant

Posted on November 26, 2025 by rtushnet

Skillz Platform Inc. v. Papaya Gaming, Ltd., 2025 WL 3268799,
24cv1646(DLC) (S.D.N.Y. Nov. 21, 2025)

Previously.
Here, Skillz successfully kicks out Papaya’s false advertising counterclaims
for lack of injury, showing once again that the statutory presumption of irreparable
injury is really, really helpful when the elements of likely success on the
merits don’t include injury (trademark) and much less helpful when they do
(false advertising).

The parties compete in the real-money skill-based mobile
gaming (“RMSB”) market. RMSB platforms match players with other users on games
created by third parties and compete to win cash prizes or for game rewards. Skillz
most commonly offers head-to-head competition between two players, while Papaya
offers multi-player tournaments with larger cash prizes.

Papaya argued that several of Skillz’s claims were false:
Skillz advertises “Match with REAL PLAYERS of equal skill,” and its website stated
that it “leverages player matching technology to ensure fairness by pairing
players of equal skill levels, so beginners only play beginners and experts
only play experts.” However, Skillz does not dispute that matchmaking on its
platform has included “skill band expansion.” That is, “[a]s the time increases
from when a game is initiated, the maximum player rating differential permitted
for a competitor to be matched with the initiating player also increases.” It
also made other adjustments in matching that arguably don’t conform to the “equal
skill levels” claim.

It also advertised “Play real people, NO BOTS, guaranteed!” and
similar claims. However, to third-party developers, it instructed: “The bot
behavior in your game must be deterministic, meaning that given the exact same
set of player inputs and conditions, it must always produce the same bot
behavior.”

Finally, Skillz informed its customers that they can
withdraw their cash awards “at any time.” But users requesting withdrawals
exceeding $5,000 must submit to a “playtest” fraud verification screening.

But none of the details mattered, because the question here
was injury. The parties were direct competitors. But without comparative
advertising, that wasn’t enough to presume injury. Papaya’s 30(b)(6) witness
stated that “[b]ased on my experience, advertisements highlighting the ability
to withdraw money easily and quickly are highly effective” and that “Skillz’s
statements about withdrawals on its platform” “are likely to and do cause harm
to Papaya.” Its damages expert did not opine on harm causation.

This was not enough to avoid summary judgment on injury.

Papaya’s market share in 2021 grew
astronomically, while Skillz’s market share declined…. Although there is no
requirement that a party experience a decline in revenue or sales in order to
suffer an injury under the Lanham Act, Papaya has failed to point to any
evidence demonstrating that it suffered harm either to its sales position or to
its reputation from the statements by Skillz it challenges in the counterclaim.

The claims by the Rule 30(b)(6) witness were “entirely
conclusory.” Also: “The four individuals that Papaya identified during
discovery as the only individuals likely to have discoverable information about
any harm Papaya suffered have each invoked their Fifth Amendment right against
self-incrimination.”

Papaya’s argument that the ads were comparative failed. On
one webpage, headed “The Skillz Difference,” Skillz stated that it was
“committed to fair competition” and that “every game is evenly matched.” That
wasn’t enough to be comparative. Nor was the statement under the same header, “only
real people, no unfair bots here,” or other Skillz statements that an
increasing number of RMSB games “infiltrated the app stores” and used bots to
defraud player, even when Skillz stated “[w]e have never and will never use
bots to defraud customers, unlike our competitors.” That post linked to a news
segment on bot fraud in the RMSB industry that mentions class action lawsuits
against Papaya and AviaGames for their usage of bots to control the outcomes of
games. But none of these made “a misleading comparison to a specific competing
product.” (Seems like the last one did, but maybe one tweet just isn’t enough.)
Where an injury “accrues equally to all competitors” a party must produce
evidence of “actual injury and causation” to ensure that the injury is not
“speculative.” Skillz never mentioned Papaya itself nor was this a two-player
market.

Skillz also won summary judgment on Papaya’s unclean hands
defense. While “a jury would be entitled to find that Papaya used bots to
compete with human players, including to control the outcome of games, while
representing in its advertising that players would be competing against other
humans and could win through the exercise of skill,” Papaya didn’t show that
Skillz used bots that way. “Players in Skillz’s games lost because other human
players out played them, not because they were outscored by a bot.”

from Blogger http://tushnet.blogspot.com/2025/11/once-again-injury-requirement-defeats.html

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Pop, six, squish: do both popsicle advertisers have it coming?

Posted on November 17, 2025 by rtushnet

Here, false advertising claims generate false advertising counterclaims, serving as a reminder that the advertiser who goes to court needs to have its own house in order.

Austin’s Natural Frozen Pops, Inc. v. Jonny Pops, LLC, 2025
WL 3182084, No. 1:24-CV-716-RP (W.D. Tex. Mar. 13, 2025)

The parties target consumers seeking “better-for-you” treat
options, selling in healthy grocery stores like Whole Foods and Sprouts. JonnyPops’
boxes show pictures of fruit, and JonnyPops advertises that its products are
made from “simple ingredients,” are made with ingredients like “100% real
fruit,” and have the “wholesome nutrition of a fruit bar.” JonnyPops also
displays the “USDA Organic” label prominently on its packaging.

JonnyPops boxes

GoodPop alleged that this violated California law and the
Lanham Act because the two main ingredients in JonnyPops’s pops are water and
added cane sugar, and any fruit in the products is only miniscule amounts. And,despite
displaying lemons, limes, blue raspberries, and grapes on the packaging for
JonnyPops’s “Fruit Stacks” treats, the product allegedly contains none of those
fruits. GoodPop’s survey of household grocery shoppers aged 18 to 65 years
allegedly found that 50% of respondents believed JonnyPops’s “Fruit Stacks”
treat was made primarily out of fruit, while the treat allegedly contains less
than 2% fruit content. Likewise, JonnyPops’s advertising allegedly led 61% of
respondents to believe that the majority of the sugar in the product came from
fruit. GoodPop’s complaint also cited customer reviews that praise JonnyPops’s
pops for being a healthier option and having relatively low sugar, and alleged
deception among retailers as well.

GoodPop alleged that JonnyPops models its mission, brand
positioning, and pops after GoodPop’s. While GoodPop uses Good in its name to
refer not only to the ingredients in its products, “but also its desire to
inspire a ‘World of Good,’” JonnyPops advertises its mission to be “Make the
World A Better Place, One Pop At A Time.” JonnyPops allegedly uses “nearly
identical flavors” and similar package design and claims. [In the absence of a
trade dress claim—and flavors are surely functional for ice pops—how could that
matter?]

JonnyPops boxes with same flavors as Goodpop boxes

First, JonnyPops argued that the images of fruit do not
mislead consumers when viewed in context of the entire package, because the
fruit images indicate flavors, rather than ingredients, especially in
combination with the ingredients list on the side or back of the package. But
“the mere presence of an ingredient statement on the back of the product ‘does
not eliminate the possibility that reasonable consumers may be misled.’” Misleadingness
was plausible. Nor were the pictures and the “simple ingredient” claim
non-actionable puffery. The statements at issue here, especially the pictures, weren’t
exaggerated in the way typically associated with non-actionable puffery: words
like “best,” “better,” and “favorite.” Even if “simple” may be subjective, it
was the phrase “simple ingredients” in combination with the fruit pictures and
the rest of JonnyPops’s advertising that allegedly misled consumers; that
context made the claim plausibly misleading.

Deception was plausible based on the survey as well as
consumer reviews, along with allegations that “a nutritionist with more than 1
million followers on social media” recommended JonnyPops over another pop that
contained less sugar, mistakenly believing that it was JonnyPops’s pop that had
less sugar.

The consumer reviews also plausibly showed materiality.
E.g., consumers believed and cared about claims that the pops have “a lower
sugar content and appear[] to be a better for you[] product tha[n] your typical
pop” and are “made of all natural ingredients and had good nutrition compared
to a lot of sugar brands.”

And injury was plausible because of the direct competition,
and because of allegations that, “where retailers have limited space to stock
either GoodPop or JonnyPops in their better-for-you section, retailers have
chosen JonnyPops due to its deceptive sales presentations, because JonnyPops is
not truly a better-for-you product.” For example, “when JonnyPops began selling
next to GoodPop as a better-for-you product in one health grocer, GoodPops’s
sales velocity declined by about 25%.”

The state law claims survived for the same reason; it was ok
to assert California claims in Texas because the alleged wrongful conduct
occurred in California.

Austin’s Natural Frozen Pops, Inc. v. Jonny Pops, LLC, 2025
WL 3182084, No. 1:24-CV-716-RP (W.D. Tex. Nov. 10, 2025)

The parties compete in the market for “ice pops.” GoodPop sued
JonnyPops under the Lanham Act and also for violations of California’s unfair
competition law. JonnyPops counterclaimed under the same laws, alleging that
GoodPop has “duped consumers into thinking that its products are nutritionally
superior to other ice pops, including JonnyPops’s products.” The court refused
to dismiss some of the counterclaims.

GoodPop allegedly falsely claimed that “[i]f it’s a GoodPop,
it’ll never have … refined sugars,” even though many of its products “contain
cane sugar, which is always refined to some extent,” citing definitions of “raw
sugar,” “sugar,” and “cane sugar.” It alleged that four consumer reviews showed
consumer belief and reliance. The court found that, at this stage, it would
accept the claim that cane sugar is refined sugar. Thus, JonnyPops had alleged
actual falsity and didn’t have to provide separate evidence of
deception/materiality; in the alternative, three of the alleged online reviews “specifically
refer to GoodPop’s products not containing refined sugar, which make it
plausible that GoodPop’s alleged deception is material.”

refined sugar claim on box

Second, JonnyPops alleged that GoodPop’s website makes the
false or misleading statement, “The fruit in GoodPops is real and really good!
We use real, whole fruits, juices and purees” when (1) certain GoodPops do not
contain any fruit, and (2) some GoodPops that do contain fruit ingredients are
made with fruit-juice concentrates and other additives, rather than “whole
fruit, juices or purees.” It quoted seven online consumer reviews that mention
GoodPops containing 100% fruit juice.

Cherry n’ Lemonade flavor

First, it wasn’t plausible that consumers would be deceived
by SKUs whose names didn’t claim fruit: the Disney Mickey Mouse Fudge n’
Vanilla Pop, the Fudge n’ Vanilla Crunch Pop, the Fudge n’ Caramel Crunch Pop,
and the Chocolate Vanilla Sandwiches. However, GoodPop’s Cherry n’ Lemonade Pop
and Star Wars Green Apple Lightsaber Pops allegedly “consist largely of
fruit-juice concentrates and other additives, rather than whole fruit, juices,
or purees.” Aaccepting as true JonnyPops’s allegation that fruit juice
concentrate is not a type of whole fruit, juice, or puree, that was enough to
plead literal falsity; several cited reviews positively reference GoodPop’s
Cherry n’ Lemonade Pop being made with “100% real juice.”

Third, JonnyPops alleged that GoodPop uses images of
children eating its most sugary products to give consumers the misleading
impression that its products are healthy for children. No dice. None of the alleged
online reviews or comments were tied in any way to images of children in its
advertising.

Fourth, JonnyPops alleged that GoodPop’s packaging of its
products is “misleading and deceptive because [it] displays images of fruit
that are not the exclusive or even the primary ingredients of its products.” For
example, GoodPop’s Cherry n’ Lemonade Pop allegedly contains filtered water,
white grape juice concentrate, and apple juice concentrate as the top three
ingredients, as well as “some lemon juice” and “cherry … concentrate” as
lesser-included ingredient. JonnyPops cited a review that states, “I love the
mixture of the sweet tangy flavors from the lemon and cherry juice” and another
stating “You can taste the lemon and cherry in them.” [I’m reminded of research
indicating that vanilla ice cream tinted pink is perceived by many consumers as
strawberry-flavored.] Whether consumers instead understand the packaging to
show “critical ingredient[s]” was a fact issue to be resolved after discovery—just
as in the Pom Wonderful case.

The court found that it was plausible that consumers believe
GoodPop products only or primarily contain the fruit(s) depicted on the
packaging, thus making the packaging misleading for products where the fruits
in question are not the only or primary ingredient. However, “JonnyPops’s
argument that GoodPop’s packaging displays images of whole fruit but does not
contain whole fruit is borderline frivolous. As GoodPop argues in its Reply, ‘no
customer who sees whole cherries or oranges on a package expects to find stems
and peel in the product.’”

The court likewise denied the motion to dismiss
counterclaims based on product names. “It is plausible, for example, that
consumers are misled by a product being called Cherry n’ Lemonade Pop, when the
product contains more grape-based and apple-based ingredients than cherry-based
or lemon-based ingredients.”

Finally, JonnyPops alleged that GoodPop’s use of the “USDA
Organic” symbol on its packaging misleads consumers into believing its products
are healthy. A review of GoodPop’s Orange n’ Cream Pop, which contains eight
grams of added sugar stated that the reviewer felt “particularly good about
[this popsicle] because it is made of organic ingredients, no refined sugar or
high fructose corn syrup, and no artificial dyes.” Another consumer reported
that they “love the fact that these pops are organic, dairy free and isn’t
loaded with sugars and calories. Taste like the normal thing but way
healthier.”

Although I would have gone with preemption, the court found
that this wasn’t plausibly misleading. “JonnyPops does not provide the Court
with any facts supporting that GoodPops being labelled organic makes consumers
think anything other than what the label says—that they are organic…. If
JonnyPops’s argument is that a product can be both organic and unhealthy, which
is misleading to consumers, then that is an issue inherent with the USDA’s
definition of organic— not an issue with GoodPop’s particular use of the ‘USDA
Organic’ label.”

The California claims failed because JonnyPops didn’t plead
facts allowing the court to draw the reasonable inference that GoodPop engaged
in wrongful conduct in California or made false or misleading statements there.

from Blogger http://tushnet.blogspot.com/2025/11/pop-six-squish-do-both-popsicle.html

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Chicken feed virus protection claim triggers lawsuit

Posted on November 17, 2025 by rtushnet

 Kalmbach Feeds, Inc. v. Purina Animal Nutrition, LLC, 2025
WL 3153412, No. 2:25-cv-00617 (S.D. Ohio Nov. 12, 2025)

One reason I love advertising law is that, eventually,
everything lands in it, and I learn about new-to-me corners of the world. Kalmbach
sued its competitor Purina for statements about Purina’s poultry feed products
under the Lanham Act and the Ohio Deceptive Trade Practices Act, and secured a
preliminary injunction on some of its claim.

Kalmbach’s “Henhouse Reserve” is aimed at the “backyard”
poultry market, as is Purina’s “Farm to Flock.” They are both granola-like
“premium” feeds aimed at owners who keep egg-laying hens. “Backyard chicken
flock owners tend to have fewer chickens; they may treat their chickens more
like pets and pay for premium feed. … Backyard owners may also be more
emotionally motivated to keep their chickens alive, because they might keep
their chickens as a hobby, for eco-conscious reasons, or because they view them
as their pets. Thus, they may be particularly concerned about recent avian
influenza outbreaks.”

Farm to Flock contains “FeedLock,” a “multispecies feed
additive technology” consisting of medium-chain fatty acids which are designed
to interact with the membranes of envelope viruses and “deactivate” them. “Although
medium-chain fatty acids have been found to help prevent outbreaks of disease
in swine, to date, there is no evidence that they impact disease outbreaks in
poultry.”

Nonetheless, for a month and a half in 2025, Purina actively
marketed Farm to Flock as “helping to defend against bird flu.” It based this
claim on (1) a lab test and (2) an assumption. For (1), Purina and its
codeveloper dosed four samples of chicken feed with varying levels of FeedLock
and H5N1, and one sample of control feed with H5N1 only. The FeedLock feed
“showed reduced viral loads” after twelve hours, while the control sample
showed stable levels of bird flu for a week. For (2), based on the “consensus
in the swine industry,” stemming from a commercial swine study, that
medium-chain fatty acids “inhibited the transmission of [swine envelope virus]
pathogens in the feed to” swine, Purina extrapolated that the medium-chain
fatty acids in FeedLock would similarly inhibit the transmission of the avian
influenza envelope virus pathogens to poultry.

Purina directly advertised its Farm
to Flock bird flu defense claims on its website and social media platforms, as
well as through direct communications to consumers and distributors across the
United States. Its employees, including scientists and sales representatives,
repeated variations of these claims on webinars and at in-person industry
meetings. In describing the purported flu-fighting properties of Farm to Flock,
Purina’s employees sometimes claimed it “has been shown to be protective
against, protecting against viruses…includ[ing] bird flu.”

one example of the virus defense claims; more below

Regulators in Kansas and Minnesota quickly raised concerns,
to which Purina responded by removing its claims and requesting that similar claims
made by third parties be taken down. The FDA subsequently identified an
additional statement that Purina needed to edit or remove, which it did. But Kalmbach, believing it had already suffered damage, brought suit.

The court considered the state and federal claims to have
identical standards.

Purina argued that claims like “helps defend against bird
flu” referred to defending the feed from becoming a transmission mechanism for
bird flu, not to defending the birds against bird flu. The court didn’t find
that a plausible reading. Anyway, such claims were “scientifically dubious,”
given that chicken feed was not known to be a transmission vehicle in the first
place; swine feed can be a source of transmission for viruses in swine, but
those swine viruses don’t affect birds. Its lab test didn’t show a decreased
risk of chickens contracting bird flu. Thus, the court found that the
statements about the impact of FeedLock feed on avian influenza were likely to
be found literally false.

Purina’s “immunity” statements were also literally false. Not
only did Purina tout its feed’s “Complete…Defense for Laying Hens” and
“Fun-filled, flu-fighting goodness” in large font at the top of the
advertisement, with the supposed caveat explaining that this defense relates to
the feed in small font at the bottom, even the caveat was false: “FeedLock® is
a breakthrough ingredient of the system that nourishes and protects, helping to
instantly defend your flock against avian influenza, while also boosting
immunity and breaking down harmful pathogens on the feed with every bite.” This
reference to “immunity” indicated that Purina was making claims both about FeedLock’s
interaction with avian influenza on feed, where FeedLock supposedly would break
down pathogens, and about avian influenza in a bird, where FeedLock would
supposedly boost immunity. Purina’s own expert witness testified that it was
“improper” to represent that FeedLock provides any “immunity or treatment
against avian influenza.”

ad claiming to support “immune, digestive & overall health”

And, given the expert consensus that feed is not recognized
as a “transmission vector of bird flu,” Purina’s “more ambitious” statements
that FeedLock defends against the bird flu, apart from any immunogenic function,
were also literally false. “If feed is not a known transmission vector—and
Purina’s laboratory test does not show that it is—protecting the feed could
have no impact on whether birds would get avian influenza.” At most, Purina’s
expert would only say that “[FeedLock] would definitely be able to interact
with that virus and break down the viral envelope,” which would then reduce the
infectivity of the virus to some extent—but she would not say that it could
“neutralize” the virus. Even in the lab, infected feed was only “approaching
nondetectable or approaching noninfective” once treated with FeedLock
(emphasis added). “Purina had no evidence showing Purina feed infected with
avian influenza, once treated with FeedLock, ever had a nondetectable or
noninfective amount of avian influenza.” And the feed tested in the lab was poultry
mash feed— “a ground feed different than Farm to Flock.” [Some parts of this
sound like “lack of substantiation” arguments, something that shows up later in
the remedy discussion, though taken together they plausibly add up to literal
falsity. In addition, given the scientific nature of the claims, it is reasonable
to treat them as “tests prove” claims, which means that they can be falsified
by showing that the tests don’t prove the ad claim.]

social media post

In addition, Purina necessarily implied false statements
about “defense against” bird flu.  E.g.,
claims that FeedLock “helps defend your flock….It helps to support strong
healthy hens by actively supporting and fortifying immunity and gut health” had
to be read in context with Purina’s claim in that same ad that
“FeedLock®…helps defend your flock against avian influenza and other viruses”
and claims that the feed “give[s] your hens the wellness boost they deserve
with layer feed that nourishes AND defends: [f]ortifies immunity and helps
defend against bird flu[,] [g]ut health support[,] [s]trong shells, vibrant
yolks.” These claims necessarily implied that the feed would defend the chicken
against bird flu after consumption, and that the feed gives the hens a wellness
boost.

“Every other claim in the ad (that the feed nourishes,
fortifies immunity, supports gut health, leads to stronger shells and vibrant
yolks) suggests a benefit to the hen, not the feed.” Thus, even assuming the
bird flu defense claim could technically/linguistically be about the feed, it
was false by necessary implication. “Purina cannot be heard to claim that this
one statement, buried among six about how Purina feed benefits the health of
hens, is about a benefit to the feed itself. It cannot be heard to say that any
claim that its feed fortifies immunity is unrelated to a claim that the feed
defends against viruses.” Purina’s proposed truthful meaning was not reasonable
and thus the claim could not be called ambiguous.  The court noted that other ads suggest that
the more FeedLock feed a bird consumes, the stronger its immunity becomes:
“FeedLock®…help[s] to instantly defend your flock against avian influenza,
while also boosting immunity…with every bite.”

“[S]ome of these ads plainly and facially imply that
FeedLock feed is defending or mitigating avian influenza in the chickens
themselves by ‘boosting immunity.’” Letters and inquiries from Purina’s
regulators confirm this implication.” (Among other things, the FDA took issue
with advertising statements about the bird flu that lacked “explicit reference
to the feed itself.”)

another ad

The ads also necessarily implied that FeedLock defended
backyard chickens more when more feed is consumed, and continued to defend
chickens even after consumption—by offering continuing immunogenic and health
benefits to the birds “with every bite.” The combination of immunity and health
claims along with claims that FeedLock feed “defends against” avian influenza
and other viruses “necessarily implies that FeedLock is providing some
antiviral value to the bird itself, including after consumption. Based on the
record, this appears to be false.”

So too with the necessary implication of statements claiming
benefits against “other viruses.” “Viruses,” plural, “necessarily and
unambiguously implies, in the context of an advertisement for ‘Hen Food,’ that
there are other viruses that FeedLock defends against.” Again, the record
supported falsity. “Avian influenza is the only virus known to infect birds.”

fact sheet (or is it?) claiming to fight “viruses like” bird flu

The court didn’t bother with misleadingness (though some
evidence shows up in the materiality discussion), because literal falsity can
be presumed deceptive. There was direct and indirect evidence of materiality:
direct from customer inquiries, which can show that a claim was
purchase-relevant, and indirect. “One of Kalmbach’s sales representatives
testified that she was told by customers and potential customers that they
wouldn’t consider Kalmbach’s Henhouse Reserve feed because it lacked a bird flu
preventative or bird flu prevention, unlike Purina’s Farm to Flock.” (Not
hearsay because not offered for the truth of the matter asserted.) Plus,
Kalmbach showed that Purina “misrepresented an inherent quality or
characteristic of the product.” Advertising virus defense is likely to induce
consumers to believe they are getting a better product than feed that does not
offer such a defense. Purina’s own internal consumer research results concluded
that such claims were “most motivating” to customers; Kalmbach’s expert
testified that many consumers in this market “are more emotionally motivated to
keep their chickens alive, and are concerned by recent outbreaks of avian
influenza,” and Purina’s expert agreed that backyard owners “are emotionally
connected to their flock.” Purina’s senior marketing manager testified that
Purina’s consumers “started to humanize or personify their chickens, and so
they treated them like family. They were more like pets like cats and dogs.” [I
hate to ask, but, based on this
story, I have to wonder: is MAGA going to go after antivirals in chicken
feed? Will they worry about chicken autism?]

another example

The court pointed specifically to a Purina internal report
finding that the vast majority of consumers in the market found “brands that
spend time educating customers are more trustworthy,” [of relevance far beyond
this case!] and thought it was “important to stay up to date on the latest
nutrition for animals.” It did not follow that consumers would be skeptical of
such claims: “If anything, it seems logical that consumers would be less
inclined to scrutinize Purina’s claims because they would trust Purina,
believing that Purina’s efforts to educate consumers as to their feed’s
purported benefits were based on the latest updates in animal nutrition.” And
Kalmbach’s sales rep supported this by testifying that she told a potential
customer that the claim wasn’t true, and received the question: why would
Purina advertise it if it wasn’t true?

Causation/harm: “[T]o obtain injunctive relief[,] logical
likelihood of damages is sufficient.” Given the presumption of deception and
the existence of some evidence of misleadingness, including a consumer inquiry
into why Kalmbach does not “have a product like [Purina’s] that can defend
against bird flu,” Kalmbach was a likely victim of Purina’s acts.

There was a presumption of irreparable injury. Purina argued
that the presumption was rebutted here because any lost sales could be recouped
by money damages, and there was no evidence supporting “a more severe and
ongoing injury,” like a dealer dropping Kalmbach for Purina or reputational
damage. It also argued that requiring it to contact its customers would be too
extreme here, where there is no ongoing, irreparable injury.

Characterizing the issue as one of “presumption of harm,”
rather than presumption of irreparable injury, the court found that
there was still the distinct possibility that Kalmbach will suffer injury,
which is the wrong question, but the right one probably still has the same
answer. That’s because,

although Purina sent out three
blast emails to 130,000 recipients about Farm to Flock with statements
regarding avian influenza, it has never corrected those emails. Should any of
those 130,000 email recipients (or any further recipients of those emails) rely
on those emails, further disseminate those emails, or refer back to those
emails today or in the future, they may believe Purina still represents that
its Farm to Flock feed helps defend against bird flu. Because it would be
difficult, if not impossible, to calculate whether Purina’s more recent sales
of Farm to Flock were a result of these latent advertisements, calculating
damages would be futile.

Purina argued that Kalmbach’s supposed delay in bringing the
motion undermined any claim of irreparable harm. Kalmbach learned about
Purina’s advertisements in April and sued in early June; that wasn’t a
sufficient delay to undermine Kalmbach’s claim of irreparable injury,
especially given that Kalmbach would need some time to evaluate the scientific
claims.

Harm to Purina/balance of equities: Purina stopped further
publication but didn’t issue corrective statements. Purina argued that a public
retraction would risk damaging its reputation. At the preliminary injunction
stage, a court order proclaiming its ads were “unsupported and untrue” would
erode brand trust and goodwill, so that would be inappropriate. To be sure,
this was something of “a self-imposed risk” to Purina, so the court tailored
the injunction to avoid some of Kalmbach’s proposed harshness.

Purina initially consented to a mostly prohibitory
preliminary injunction: stop the accused advertising and notify distributors,
retailers, and marketing affiliates to cease use and dissemination of that
advertising. Kalmbach wanted Purina to publish a statement saying its claims
were untrue and that it was retracting them.

“Purina’s argument is mainly that requiring any public
statement on Purina’s part would be too extreme, and Purina points to cases
where courts ordered much more tailored relief.” The lesson was that “retractions
should be issued in instances where identifiable third parties received the
challenged claim,” and here those were emails. “Just because Purina has
addressed some forms of its prior advertisements does not mean that all
confusion will have dissipated. Thus, Purina must issue some form of a retraction.”

But the court would limit the language. The antivirus claim
was false “for the purposes of the Lanham Act and the Ohio Deceptive Trade
Practices Act because Purina had no empirical support or basis for it, and the
scientific consensus today suggests that it is incorrect.” But Kalmbach’s
expert testified that it is possible that avian influenza could live on
chicken feed, and that if a bird ingested that infected feed, that bird could
get avian influenza. And it was an open question whether FeedLock would have
any effect on avian influenza in bird feed, or the population of birds that eat
that feed. [It’s possible that sprinkling a mix of cinnamon and cumin
into the feed would protect birds; this is why the Third Circuit held that
making unsubstantiated claims that you have no reason to think are true counts
as making literally false claims. It’s bullshit in the sense that you have no
interest in the truth value of your claim; you’re just making it to sell the
product. And that’s not an attitude towards truth worth protecting even if
“lack of substantiation” claims are otherwise unavailable.]

But, anyway, this was a preliminary injunction and not a
final determination of falsity, so the court required the retraction (to be
sent to email recipients and posted on Purina’s website) to say “At the
preliminary injunction stage, the Court found that Purina engaged in false
advertising because these statements were not scientifically grounded and
lacked a scientific basis. Purina retracts these statements, as well as any
other representation that Purina’s Farm to Flock 18% Layer Hen Food defends
against, protects against, prevents, mitigates, or provides immunity to the
effects of avian influenza, bird flu, or other viruses.” [Quick TOS question:
does your TOS warn people who unsubscribe from your mailing list that you might
have to contact them in the future for legal compliance?] [Quick reading
comprehension question: what percentage of consumers will consider the reputational
hit to Purina decreased because it’s just a preliminary injunction? I think the
court did the right thing, but that doing so will not change the effects on
Purina’s overall reputation one jot. Which is to say that sometimes we should
be happily normative about these issues.]

Note: the court specified
URLs
at which the notice should be given, and they’re not there yet, but Purina
has 10 days, which (as of Nov. 14) have not yet passed. 

from Blogger http://tushnet.blogspot.com/2025/11/chicken-feed-virus-protection-claim.html

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Landing page that misdirected searchers away from real senior living community was plausibly false advertising

Posted on November 17, 2025 by rtushnet

Cedar Communities at Commerce, LLC v. Caring, LLC, 2025 WL
3187288, No. 1:25-CV-00922-JPB (N.D. Ga. Nov. 14, 2025)

Caring operates a web-based senior living placement and
referral service, touting “the longest-running, highest-integrity senior living
review program on the web, all to ensure families make the best and most
informed choice possible for their loved ones.” Caring claims that it offers
“free, personalized guidance from experienced advisors who understand the
unique needs of seniors and their families” and that “Family Advisors provide
invaluable expertise to ensure you have all the information you need to
successfully find the community that meets all of your needs.”

Cedar argued that these statements were false and misleading
because (1) Caring exclusively refers potential customers to senior living
communities that are in its referral network, for which it earns commissions,
and (2) the service is not free, because Caring’s commissions are equivalent to
the first month’s rent and care and these costs are passed on to the customer
through higher rent and care expenses.

Cedar isn’t part of Caring’s referral network, but when
someone searches for “Brookside Commerce” (its dba) a “prominent listing” for
that appears on Caring’s site because of Caring’s SEO.

Google result

Cedar argued that this falsely implied that its facility was
part of Caring’s network; that the included photo is fake; and that the
3.3-star rating is phony. If a potential customer clicked on this link, they’d
go to a landing page tailored for Brookside Commerce, furthering the illusion
of network membership.

landing page

A click on “Request Tour,” “Get Costs” or “Find
Availability” would be connected to one of Caring’s representatives—not one of Cedar’s
representatives—who then directs the inquiry away from Cedar’s facility and to
a community within its referral network.

Cedar filed a putative class action for violation of the
Lanham Act and coordinate state law. The court declined to dismiss, saying some
things about false association that are worrying devoid of context but
understandable on these facts, and they are properly framed as false
advertising claims—requiring materiality (and commercial advertising).

Caring argued that claims like “comprehensive directories,”
“expert consultation” and “free referrals” were either non-actionable “puffery”
or true, and that Caring does not purport to offer “unbiased” consultations and
openly discloses its commission-based referral network model on the website.

Even without a specific statement about lack of bias, “after
viewing the statements as a whole and considering the full context of the
statements, the Court finds it plausible that a reasonable consumer under some
circumstances would be misled into believing that Defendant’s representatives
generate their recommendations in an independent, fact-based manner and select
possible options from the entire directory—instead of only promoting
communities in their network.”

What about the stock photo and user reviews?  Not really addressing those, the court agreed
that the landing page “creates a false impression of affiliation with” Cedar. Here’s
the yikes: “As an initial matter, it is reasonable to assume that some people
would think that Plaintiff’s facility was part of Defendant’s network simply
because the landing page exists on Defendant’s website.” More persuasively, “the
option to request a tour, get costs or find availability … give the false
impression to potential customers that they have the ability to easily obtain
additional information about Plaintiff’s facility by just clicking a button.
Importantly, however, when potential customers click on one of those buttons,
the potential customer is never provided with more information about
Plaintiff’s facility and is instead transferred to one of Defendant’s
representatives that recommends a facility that pays commissions to Defendant.”
(Note that if the buttons did work as labeled, even without affiliation, there
wouldn’t be falsity.)

Materiality: Cedar alleged that choosing a facility is a
“complex process” and that families and caregivers “often face overwhelming
stress and anxiety when trying to choose the right senior care option for their
loved one.” It was plausible that the website misrepresented “the inherent
qualities and characteristics of Plaintiff’s facility,” and Caring’s claim that
it offers expert recommendations “enhances the likelihood that [the]
misrepresentation would influence purchasing decisions” of potential customers,
especially where the decision making is complex and stressful.

Injury: Given the diversion from Cedar if consumers clicked
buttons requesting a tour, etc., that was plausibly pled, even without
identifying specific diverted consumers. Reputational injury was also plausible
because consumers may falsely assume that Caring’s alternative recommendations
(other assisted-living facilities) are superior.

State-law claims: Cedar argued that Caring’s keyword
“manipulation” violated state law against unfair business practices, and so did
the “unauthorized” landing page, leading consumers to believe the parties were
affiliated. Again, the court allowed the claims—even though keyword advertising
on its own is benign.

from Blogger http://tushnet.blogspot.com/2025/11/landing-page-that-misdirected-searchers.html

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