Tag Archives: damages

Gerber’s Good Start troubles continue

Posted on March 29, 2024 by rtushnet

Hasemann v. Gerber Prods. Co., 2024 WL 1282368, No. 15-CV-2995(EK)(JAM), 16-CV-1153(EK)(JAM), 17-CV-0093(EK)(JAM) (E.D.N.Y. Mar. 25, 2024) Gerber Good Start Gentle formula isn’t like most other infant formulas, which are made with “intact” cow’s milk protein. GSG uses cow’s milk protein … Continue reading →

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conjoint analysis has to isolate challenged representations

Posted on March 29, 2024 by rtushnet

Moore v. GlaxoSmithKline Consumer Healthcare Holdings (US) LLC, — F.Supp.3d —-, 2024 WL 348821, No: 4:20-cv-09077-JSW (N.D. Cal. Jan. 30, 2024) The court grants partial class certification and allows/excludes some expert testimony in this case alleging that ChapStick products were misleadingly … Continue reading →

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false advertising is harder to prove than TM infringement because of the injury requirement (not to mention materiality)

Posted on December 15, 2023 by rtushnet

ImprimisRx, LLC v. OSRX, INC., 2023 WL 8604148, No. 21-cv-01305-BAS-DDL (S.D. Cal. Dec. 12, 2023) The parties are compounding pharmacies that focus on medications used in optometry and ophthalmology. Section 503A compounding pharmacies fill prescriptions for individual patients. Section 503B … Continue reading →

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What can experts testify to in Lanham Act cases? Not the law or regulations

Posted on August 7, 2023 by rtushnet

GOLO, LLC v. Goli Nutrition Inc., 2023 WL 4952576, No. 20-667-RGA (D. Del. Aug. 3, 2023) Potentially interesting pretrial rulings in this false advertising/TM case: Goli’s motion to exclude the testimony of Dr. Jerry Wind was granted in part to … Continue reading →

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Defendant’s belief its ads were effective is evidence of injury

Posted on July 24, 2023 by rtushnet

Sandoz Inc. v. Amgen Inc., 2023 WL 4681569, No. 2:22-cv-05326-RGK-MARx (C.D. Cal. Jun. 29, 2023) Sandoz brought state and federal false advertising claims against Amgen for its advertising of Neulasta, a pegfilgrastim injection used to treat the immunity-reducing side effects … Continue reading →

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False advertising and TM infringement receive very different damages treatment: case in point

Posted on July 19, 2023 by rtushnet

CareDx, Inc. v. Natera, Inc., No. 19-662-CFC, 2023 WL 4561059 (D. Del. Jul. 17, 2023) Another entry in the “courts treat Lanham Act false advertising very differently than Lanham Act trademark infringement, despite identical damages provisions” line. Natera made superiority … Continue reading →

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10th Circuit endorses presumption of Lanham Act false advertising injury in mostly two-player market

Posted on June 29, 2023 by rtushnet

Vitamins Online, Inc. v. Heartwise, Inc., — F.4th —-, 2023 WL 4189604, Nos. 20-4126, 21-4152 (10th Cir. Jun. 27, 2023) Proceedings below most recently blogged here. Vitamins Online sued Heartwise under the Lanham Act and Utah’s Unfair Competition Law for … Continue reading →

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no disgorgement/fees in false advertising case even after Romag remand

Posted on March 16, 2023 by rtushnet

Harbor Breeze Corp. v. Newport Landing Sportfishing, Inc., 2023 WL 2504988, No. SACV 17-01613-CJC (DFMx) (C.D. Cal. Mar. 13, 2023) Previous district court ruling on irreparable harm; previous 9th Cir. opinion remanding for reconsideration of disgorgement and attorneys’ fees after … Continue reading →

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Timeshare case: proof of causation/damages is difficult especially w/o grasp of Bayesian probability

Posted on October 26, 2021 by rtushnet

Wyndham Vacation Ownership, Inc. v. Sussman, 2021 WL 4948099, No. 6:18-cv-2171-GAP-DCI (M.D. Fla. Sept. 20, 2021) In this timeshare exit false advertising litigation, the court excludes Wyndham’s expert. Timeshare exit entities like defendant TET used “online advertising and oral sales … Continue reading →

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

Posted on December 22, 2020 by rtushnet

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

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