Tag Archives: preemption

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

Posted on June 1, 2020 by rtushnet

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

Posted on May 11, 2020 by rtushnet

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

Posted on April 16, 2020 by rtushnet

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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implied claims of FDA approval actionable under Lanham Act

Posted on October 29, 2019 by rtushnet

Kurin, Inc. v. Magnolia Medical Technologies, Inc., 2019 WL 5422931, No.: 3:18-cv-1060-L-LL (S.D. Cal. Oct. 23, 2019) Kurin developed the Kurin Lock, a “specimen diversion device that reduces the risk of blood culture contamination and associated false positive blood culture … Continue reading →

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false advertising claim based on alleged misbranding of drug as supplement fails

Posted on May 2, 2019 by rtushnet

Amarin Pharma, Inc. v. Int’l Trade Comm’n, Nos. 2018-1247, 2018-114, 2019 WL 1925649, — F.3d – (Fed. Cir. May 1, 2019) The court of appeals upheld the ITC’s decision not to institute an investigation into Amarin’s complaint of an unfair … Continue reading →

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What’s UpCounsel? LegalForce thinks it’s false advertising

Posted on January 15, 2019 by rtushnet

LegalForce RAPC Worldwide P.C. v. UpCounsel, Inc., 2019 WL 160335, No. 18-cv-02573-YGR (N.D. Cal. Jan. 10, 2019) LegalForce’s litigation against various competitors in the trademark registration world continues.  UpCounsel “is an online marketplace for legal services that enables users (primarily … Continue reading →

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FDCA preempts arguments that structure/function claims in fact mislead about disease prevention

Posted on January 11, 2019 by rtushnet

Dachauer v. NBTY, Inc., — F.3d —-, 2019 WL 150016, No. 17-16242 (9th Cir. Jan. 10, 2019) Defendants make vitamin E supplements that claim, on their labels, to “support cardiovascular health” and to “promote[ ] immune function,” “immune health,” “heart … Continue reading →

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Almond milk name isn’t deceptive to reasonable consumers

Posted on December 27, 2018 by rtushnet

Painter v. Blue Diamond Growers, No. 17-55901, 2018 WL 6720560, — Fed.Appx. —- (9th Cir. Dec. 20, 2018) Painter alleged that Blue Diamond mislabeled its almond beverages as “almond milk” when they should be labeled “imitation milk” because they substitute … Continue reading →

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Juxtaposition of claims about protein amounts and sources plausibly creates falsity

Posted on December 6, 2018 by rtushnet

Hi-Tech Pharmaceuticals, Inc. v. HBS Int’l Corp., — F.3d —-, 2018 WL 6314282 , No. 17-13884 (11th Cir. Dec. 4, 2018) Hi-Tech sued HBS, alleging that the label of its protein-powder supplement HexaPro misled customers about the quantity and quality … Continue reading →

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This is personal: Diet Coke obesity suit dismissed even after repleading

Posted on November 20, 2018 by rtushnet

Geffner v. Coca-Cola Co., 2018 WL 6039325, No. 17 Civ. 7952 (LLS) (S.D.N.Y. Oct. 31, 2018) Plaintiffs alleged that, by marketing Diet Coke as “diet,” Coca-Cola misleads consumers into believing that drinking Diet Coke will assist in weight loss or … Continue reading →

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