Tag Archives: false advertising

Expert witnesses as Lanham Act defendants

Posted on July 10, 2023 by rtushnet

Via an eagle-eyed correspondent: J&J’s bankrupt subsidiary LTL is suing the expert witnesses for the mesothelioma victims in the underlying tort litigation for injurious falsehood, fraud, and Lanham Act violations for disparaging J&J’s Baby Powder as causing mesothelioma. They allege … Continue reading →

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Ambiguity could be deceptive where “buy 3 get two free” really meant “get 5 at a lower price per unit”

Posted on July 7, 2023 by rtushnet

Sihler v. Fulfillment Lab, Inc, No. 20cv1528-LL-DDL, 2023 WL 4335735 (S.D. Cal. Jun. 23, 2023) Common sense is a big part of advertising law, as implemented by the reasonable consumer. It can be hard to distinguish one case from another … Continue reading →

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Oregon SCt rules on “ascertainable loss” in false discount case

Posted on July 5, 2023 by rtushnet

Clark v. Eddie Bauer LLC, 371 Or. 177, — P.3d —-, SC S069438 (Jun. 29, 2023) Under Oregon’s Unlawful Trade Practices Act (UTPA), a person who suffers an “ascertainable loss of money or property” as a result of another person’s … Continue reading →

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no predominance of common issues where many consumers would still have taken the drug at issue

Posted on July 3, 2023 by rtushnet

Painters & Allied Trades District Council 82 Health Care Fund v. Takeda Pharm. Co., 2023 WL 4191651, — F. Supp. 3d –, No. 2:17-cv-07223-JWH-AS (C.D. Cal. May 24, 2023) I tell my students that probabilistic claims are easier for competitors … Continue reading →

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odd 2d Circuit case about misleadingness versus confusion

Posted on July 3, 2023 by rtushnet

Gibson v. SCE Gp. Inc., 2023 WL 4229913, No. 22-916 (2d Cir. Jun. 28, 2023) Another models (and one model’s sister) v. nightclubs case. Gibson et al. appealed partial summary judgment against them on on their claims for false endorsement … Continue reading →

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Inter American Convention allows claims that Lanham Act makes dubious after Abitron; but what about Article III?

Posted on July 3, 2023 by rtushnet

Industria De Alimentos Zenu S.A.S. v. Latinfood U.S. Corp., No. 16-6576 (KM) (MAH), 2023 WL 4200169, — F. Supp. 3d — (D.N.J. Jun. 27, 2023)   Industria sued Latinfood for trademark and copyright infringement; Latinfood counterclaimed for tortious interference against … 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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Ambiguity in consumer protection cases means something different than ambiguity in Lanham Act cases

Posted on June 27, 2023 by rtushnet

Would you believe I substantially shortened the analysis? La Barbera v. Olé Mexican Foods Inc., 2023 WL 4162348, No. EDCV 20-2324 JGB (SPx) (C.D. Cal. May 18, 2023) Granting reconsideration, the court reverses its previous ruling and dismisses the claims … Continue reading →

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materiality dispute avoids sj in literal falsity case (also no seller standing against ingredient supplier)

Posted on June 26, 2023 by rtushnet

World Nutrition Inc. v. Advanced Enzymes USA, 2023 WL 4105345, No. CV-19-00265-PHX-GMS (D. Ariz. Jun. 21, 2023) WNI and defendants AST/Specialty sell enzyme supplement products. WNI and AST sell directly to consumers, while Specialty is a wholesaler that sells to … Continue reading →

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Advertising injury policy’s IP exclusion means ROP claims aren’t covered

Posted on June 26, 2023 by rtushnet

Covington Specialty Insurance Company v. Omega Restaurant & Bar, LLC, — F.Supp.3d —-, 2023 WL 2720805, No. 2:21-cv-247 (E.D. Va. Mar. 30, 2023) This is fallout from one of the many right of publicity etc. lawsuits against clubs for advertising … Continue reading →

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