Tag Archives: preemption

Dastar/preemption bars claims based on allegedly false claims of credit for innovation

Posted on March 24, 2017 by rtushnet

OptoLum, Inc. v. Cree, Inc., No. CV-16-03828, 2017 WL 1057924 (D. Ariz. Mar. 21, 2017) The parties compete in the market for LED lights. OptoLum claims to be the inventor of technology used inside LED bulbs allowing them to have … Continue reading →

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allegedly false generic claims not actionable, but contributory liability possible

Posted on March 20, 2017 by rtushnet

Concordia Pharm. Inc., S.À.R.L. v. Winder Laboratories, LLC, 16-CV-00004 (N.D. Ga. Mar. 15, 2017) Concordia makes Donnatal to treat irritable bowel syndrome and acute enterocolitis.  (There’s related litigation that ended badly for the defendant there.)  Concordia’s predecessor had conditional approval … Continue reading →

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allegedly false generic claims not actionable, but contributory liability possible

Posted on March 20, 2017 by rtushnet

Concordia Pharm. Inc., S.À.R.L. v. Winder Laboratories, LLC, 16-CV-00004 (N.D. Ga. Mar. 15, 2017) Concordia makes Donnatal to treat irritable bowel syndrome and acute enterocolitis.  (There’s related litigation that ended badly for the defendant there.)  Concordia’s predecessor had conditional approval … Continue reading →

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State law can’t protect uncopyrightable design for useful article

Posted on February 21, 2017 by rtushnet

Ultraflo Corp. v. Pelican Tank Parts, Inc., No. 15-20084 (5th Cir. Jan. 11, 2017) A nice citation for the proposition that §301 preemption covers both copyrightable and uncopyrightable matter. Ultraflo argued that Pelican engaged in unfair competition by misappropriation claim … Continue reading →

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GM’s defeat device is almost by definition fraudulent omission

Posted on February 17, 2017 by rtushnet

Counts v. General Motors, LLC, No. 16-cv-12541, 2017 WL 588457 (E.D. Mich. Feb. 14, 2017) Plaintiffs sued GM for deceptive advertising, breach of contract, and fraudulent concealment claims under the laws of thirty states based on GM’s alleged installation of … Continue reading →

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Advertising a phone with an unauthorized screenshot of an app doesn’t violate the Lanham Act under Dastar

Posted on February 3, 2017 by rtushnet

Appjigger GmbH v. BLU Products, Inc., 2016 WL 4119720, No. 15–22313 (S.D. Fla. Mar. 7, 2016) Appjigger makes apps, and has an exclusive license for the WP CLOCK software app, which is available both to end users and also for … Continue reading →

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Second Circuit will trust FDA on drug facts, not on misleadingness

Posted on December 16, 2016 by rtushnet

Church & Dwight Co., Inc. v. SPD Swiss Precision Diagnostics, GmBH, 2016 WL 7131177, No. 15-2411, — F.3d – (2d Cir. 2016) (as amended on denial of reh’g Dec. 5, 2016) Original opinion discussed here; the court amended the opinion … Continue reading →

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when are state law unfair competition claims preempted?

Posted on September 29, 2016 by rtushnet

Duer v. Bensussen Deutsch & Associates, Inc., 2015 WL 11256568, No. 14-CV-01589 (N.D. Ga. Jul. 8, 2015) Very broad preemption finding makes me blog this older case that popped out of Westlaw.  Duer makes medicine dosage adherence tools suitable for … Continue reading →

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Reading list: Rothman on (c)/right of publicity conflicts

Posted on August 16, 2016 by rtushnet

Jennifer Rothman, The Other Side of Garcia: The Right of Publicity and Copyright Preemption, Columbia Journal of Law & the Arts, Vol. 39, No. 3, 2016. Abstract: This essay is adapted from a talk that I gave on October 2, … Continue reading →

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Cheerios Protein name might be more bluff than buff

Posted on August 15, 2016 by rtushnet

Coe v. General Mills, Inc., No. 15-cv-05112, 2016 WL 4208287 (N.D. Cal. Aug. 10, 2016) Plaintiffs alleged the name “Cheerios Protein” was misleading because it implied that the product is essentially the same as Cheerios, only with added protein. Cheerios … Continue reading →

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