Tag Archives: commercial speech

coordinated campaign to disparage grain-free & other pet food not actionable under Lanham Act

Posted on November 11, 2024 by rtushnet

Ketonatural Pet Foods, Inc. v. Hill’s Pet Nutrition, Inc., 2024 WL 4679219, No. 24-2046-KHV (D. Kan. Nov. 4, 2024) Ketonatural is a start-up that sells grain-free pet food, treats, and supplements. Hill’s is a large pet food company that makes … Continue reading →

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lawsuit against plaintiffs’ expert witness fails on First Amendment grounds

Posted on July 1, 2024 by rtushnet

LTL Mgmt. LLC v. Moline, 2024 WL 3219683, No. 23-02990 (GC) (JTQ) (D.N.J. Jun. 28, 2024) Not currently in bankruptcy, LTL—J&J’s solution to its talc woes—decided to sue a critic for her scientific conclusions about talc risks. The court dismisses … Continue reading →

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Is a free trial version “commercial speech”?

Posted on June 11, 2024 by rtushnet

Enigma Software Gp. USA LLC v. Malwarebytes Inc., 2024 WL 2883671, No. 17-cv-02915-EJD (N.D. Cal. Jun. 6, 2024) This is the latest decision in long-running litigation over Malwarebytes’ characterization of Enigma’s competing cybersecurity and anti-malware software as “malicious,” a “threat,” … Continue reading →

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5th Circuit allows image-based tobacco warnings in barest nod to consistency on compelled commercial speech

Posted on March 25, 2024 by rtushnet

R J Reynolds Tobacco Co. v. Food & Drug Admin., 2024 WL 1208111, — F.4th —-, No. 23-40076 (5th Cir. Mar. 21, 2024) The sudden shift in the political valence of the commercial speech doctrine strikes again! The Fifth Circuit … Continue reading →

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new article w/Mark Lemley: First Amendment Neglect in SCOTUS IP Cases

Posted on January 16, 2024 by rtushnet

First Amendment Neglect in Supreme Court Intellectual Property Cases Mark A. Lemley & Rebecca Tushnet (forthcoming, Supreme Court Review) Abstract The Supreme Court decided two cases of central importance to free speech during the 2022 term – in both cases … Continue reading →

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Earnings calls, recall notices not “commercial advertising or promotion,” but could be “of and concerning” largest market player

Posted on November 27, 2023 by rtushnet

In re SoClean, Inc., Marketing, Sales Practices & Products Liab. Litig., 2023 WL 8006602, MDL No. 3021, No. 22-542 (W.D. Pa. Nov. 17, 2023) Because this is MDL with lots of claims, the facts are a bit complicated. SoClean is … Continue reading →

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Artistic Expression or Crass Commercialism? Drawing the lines in Right of Publicity, Lanham Act, and Commercial Speech Cases

Posted on November 8, 2023 by rtushnet

PLI Media Law conference RT: There’s been a rapid and somewhat disorienting shift from a seemingly ever-growing First Amendment freedom of speech to a seeming indifference to speech and press based claims (as contrasted to religious freedom claims) in many … Continue reading →

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Covid-19 Act gives government more options in proceeding against supplement seller

Posted on July 20, 2023 by rtushnet

U.S. v. Nepute, 2023 WL 4623089, No. 4:21-CV-437 RLW (E.D. Mo. Jul. 19, 2023) The US sued Nepute (a chiropractor) and Quickwork (a company of which he is a member/co-manager). for deceptive advertising of dietary supplements in violation of the … Continue reading →

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ESG statements are commercial speech excluded from California’s anti-SLAPP law

Posted on June 21, 2023 by rtushnet

Hicks v. Grimmway Enters., Inc., 2023 WL 3829689, No. 22-CV-2038 JLS (DDL) (S.D. Cal. Jun. 5, 2023) Hicks alleged that defendant, a California agricultural corporation, misrepresented the environmental impact of its farming practices through its advertising and “Inaugural Report on … Continue reading →

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fake meat law reinstated on appeal: intentionally misleading commercial speech gets no protection

Posted on April 25, 2023 by rtushnet

Turtle Island Foods, S.P.C. v. Strain, No. 22-30236 (5th Cir. Apr. 12, 2023) Reversing the district court, the court of appeals found that Tofurkey’s facial challenge to a Louisiana anti-fake meat law failed because the law plausibly could be read … Continue reading →

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