Tag Archives: preemption

100% good news: 7th Cir. reverses “100% grated parmesan cheese” dismissal

Bell v. Publix Super Markets, Inc., 2020 WL 7137786, — F.3d –, Nos. 19-2581, 19-2741 (7th Cir. Dec. 7, 2020) Note: Then-Circuit Judge Barrett was a member of the panel when this case was submitted but did not participate in … Continue reading

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FDA preemption/preclusion after Pom Wonderful: still powerful for drugs

Exela Pharma Sciences, LLC v. Sandoz, Inc., 2020 WL 5535026, No. 19-cv-00318-MR (W.D.N.C. Sept. 15, 2020) Exela sued Sandoz for unfair and deceptive trade practices in violation of North Carolina law; tortious interference with prospective business advantage; and Lanham Act … Continue reading

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Second Circuit finds conflict preemption of publicity rts for unauthorized music sample

Jackson v. Roberts, No. 19-480 (2d Cir. Aug. 19, 2020) Judge Leval, kindly citing my work as well as that of other scholars, finds a right of publicity claim against a remix album preempted by the Copyright Act/Supremacy Clause through … Continue reading

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patent publication privilege mostly protects licensee against licensor’s false advertising claims

 AU New Haven, LLC v. YKK Corp., No. 15-cv-3411-GHW, 2020 WL 4366394 (S.D.N.Y. Jul. 30, 2020) Summarizing only a few key issues: YKK entered into an exclusive licensing agreement (the ELA) with the owners of a recently issued patent. The … Continue reading

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9th Cir. revives suit against allegedly deceptive “prescription pet food” marketing

Moore v. Mars Petcare US, Inc., No. 18-15026, — F.3d —-, 2020 WL 4331765 (9th Cir. Jul. 28, 2020) Over a dissent, the court of appeals reversed the dismissal of plaintiffs’ claims based on allegedly deceptive marketing of “so-called prescription … Continue reading

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statements to 3 of 15 market participants weren’t “commercial advertising or promotion”

Globe Cotyarn Pvt. Ltd. v. Next Creations Holdings LLC, No. 18 Civ. 04208 (ER), 2020 WL 4586892 (S.D.N.Y. Aug. 10, 2020)  Globe, a fabric manufacturer, sued a fabric patent holder, AAVN, and its subsidiary, Next Creations, for allegedly falsely telling … Continue reading

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context matters: “mineral-based” sunscreen with chemical-based active ingredients is plausibly deceptive

Prescott v. Bayer Healthcare LLC, 2020 WL 4430958, No. 20-cv-00102-NC (N.D. Cal. Jun. 31, 2020) (magistrate) Plaintiffs alleged that defendants deceived consumers by labeling their sunscreens as “mineral-based” when the sunscreens contain active chemical ingredients. As the court explains,   … Continue reading

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Copyright preempts/Dastar precludes lawsuit based on Fortnite’s copying of a dance move

Brantley v. Epic Games, Inc., No. v. 19-cv-594-PWG (D. Md. May 29, 2020)  Plaintiffs Brantley and Nickens alleged that in 2016 they created, named, and popularized a dance move, which they titled the “Running Man,” and which subsequently went viral … Continue reading

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“100% Natural” might be deceptive as applied to food w/bioengineered ingredients

Lee v. Conagra Brands, Inc., No. 17-2131 (1st Cir. May 7, 2020) Lee alleged that Wesson’s supposedly “100% Natural” vegetable oil contained GMOs, which she regarded as “quite unnatural,” in violation of Mass. Gen. Laws ch. 93A.  She also alleged … Continue reading

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lawsuit against supplement for implying arthritis claims not preempted

Yamagata v. Reckitt Benckiser LLC, 2020 WL 1505724, No. 17-cv-03529-VC (N.D. Cal. Mar. 30, 2020) A very clear opinion. Yamagata challenged RB’s advertising for joint supplements under California and NY law. As the court explained: “If the boxes are best understood … Continue reading

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