Google's alleged misrepresentations about sophisticated ad tech weren't "consumer-oriented" under NY GBL

In Re Google Digital Advertising Antitrust Litig., Nos. 21-md-3010 (PKC), 21-cv-3446 (PKC), 23-cv-5177 (PKC), 21-cv-7034 (PKC), 23-cv-1530 (PKC), 2026 WL 2942363 (S.D.N.Y. Sept. 30, 2026)

As the caption indicates, this is mostly an antitrust case, which means it’s amazing that a couple of antitrust theories survive (mostly the ones Google is precluded from contesting because of previous losses). I’m only going to talk about the false advertising part.

Newspaper plaintiffs brought claims that Google’s representations about its ad tech were misleading under GBL sections 349 and 350. However, no reasonable jury could conclude that Google’s alleged deceptions were consumer-oriented, as required by the GBL, so Google got summary judgment on these claims.

“[B]usiness entities can qualify as ‘consumers’ if the products or services purchased are consumer goods or their equivalent ....” And “an act or practice is consumer-oriented when it has a broader impact on consumers at large” and is not limited to products purchased “for personal, family, or household use.” But “section 349 is aimed at ‘modest’ transactions rather than complex or unique arrangements in which ‘each side was knowledgeable and received expert representation and advice.’ ”

Google pointed to evidence that the newspaper plaintiffs were “large, highly sophisticated companies with a strong understanding of the ad tech at issue, and that they entered into ad-tech arrangements tailored to their specific needs. Each has characterized itself as a ‘large publisher.’” Plaintiff Gannett’s Rule 30(b)(6) deponent described the company as “quite sophisticated” at “digital ad selling.” Gannett and plaintiff Daily Mail both stated in interrogatory responses that they “constantly monitor[ ] the performance of [their] ad tech partners” and make changes if they are not providing added value. Daily Mail has stated that it “operates a sophisticated tech stack” and that its advertising division employs “programmatic analysts,” “infrastructure experts” and more than a dozen engineers.

Thus, no reasonable jury could find that Google’s alleged deceptions about the functions of its sopisticated ad tech products were consumer-oriented activities:

These highly sophisticated and well-resourced plaintiffs negotiated and entered into agreements to use Google’s ad-tech products, which they used to sell billions of ad impressions and garner hundreds of millions of dollars in revenue. These were not “ ‘modest’ transactions” that fall under the GBL’s ambit but “complex [and] unique arrangements” that were entered into and supervised by sophisticated experts. Plaintiffs may be correct that the claimed deceptions affected many other publishers and billions of individual transactions, but it has been asserted throughout this multidistrict litigation that customers of the DFP ad server tend to be sophisticated and well-resourced publishers, in contrast to the small publishers that use Google’s simpler AdSense product. Even accepting the assertions of Gannett and Daily Mail that publishers suffered widespread harm based on Google’s deceptions about bidding practices … the sophisticated customers of DFP retained at least some ability to fine-tune and adjust the ad server’s settings to suit their needs. The magnitude of the transactions and the particulars unique to each publisher’s use of the ad tech preclude any finding that Google’s purported deceptions were consumer-oriented activity.

consumer suit against kratom seller proceeds on failure to disclose theory

Cheswick v. Mitra-9 Brands, LLC, 2026 WL 2949413, No. 1:25-CV-6795-LTS (S.D.N.Y. Sept. 30, 2026)

The court allowed NY consumer protection claims against a kratom seller to proceed. Kratom is “a plant-derived substance that affects the human body in a manner similar to opioids.” Mitra-9 allegedly touts the “unique benefits” of its kratom products, advertising them as “caffeine-free, non-alcoholic, low-calorie[ ]” “plant-based beverages” that “compliment[ ][sic] active lifestyles every day,” “help [consumers] sail through [their] workday or support [their] post-workout routine,” and “support[ ] overall vitality and well-being, fostering focus and a serene approach to life’s challenges.” It allegedly advertises “the unique benefits of [its] kratom,” which comes from “the verdant rainforests of Southeast Asia” and factors into their “specially designed formula.” This so-called “Mitra9 difference” makes the products “an upgrade” from “ordinary supplement drinks” and a “perfect way to shake things up.”

However, kratom allegedly contains alkaloids that, depending on the dose, can produce either stimulating or sedating effects by interacting with numerous receptors in the brain. This includes the brain’s mu-opioid receptor, which is the receptor that “produces the most addictive or habit-forming effects.” It is allegedly similar to morphine in the risks it poses of physical addiction and dependency, with similar withdrawal symptoms, as well as in the fact that repeat users need to consume increasingly large doses to achieve the same effects. Sudden cessation of kratom use can allegedly produce severe, opioid-like withdrawal symptoms, including “irritability, anxiety, difficulty concentrating, depression, sleep disturbance, including restless legs, tearing up, runny nose, muscle and bone pain, muscle spasms, diarrhea, decreased appetite, chills, inability to control temperature, extreme dysphoria, and malaise.”

Nonetheless, most United States consumers allegedly “do not know what kratom is and have no idea how addictive it is.” Mitra-9, despite allegedly knowing the truth, does not warn them, but instead uses packaging that resembles that of commonplace products like “5-Hour Energy” shots and caffeinated energy drinks like “Redbull” and “Celsius.” The named plaintiff initially purchased Mitra-9 Products as an “alternative for pain relief,” but, after consuming them for several months, he began experiencing withdrawal symptoms including “cold sweats, anxiety, joint aches, extreme irritability, restless leg syndrome, and insomnia.”

The plaintiff pled on information and belief that Mitra-9 “interacted with growers and distributors in Southeast Asia who have disclosed the addictive nature of kratom”; “received numerous user reports about the addictive potential of kratom in the United States”; and possessed “studies regarding kratom addiction.”

The court found that a price premium theory of injury was plausible. It was logical that the class “suffered economic injury because they ... would have paid substantially less for [the Products], if they had known that the Products posed a serious risk for addiction.” This was not the same as pleading they never would have purchased the relevant products absent the deception, which is apparently not enough to plead injury.

“Where, as here, the allegedly deceptive act involves an omission, the plaintiff must show that ‘the business alone possesses material information that is relevant to the consumer and fails to provide this information,’ or that the plaintiff could not ‘reasonably have obtained the relevant information [he] now claim[s] the [defendant] failed to provide.’ ”  This latter path was plausibly pled in light of allegations about the public’s general lack of familiarity with kratom, the fact that kratom was “marketed as providing benefits without disclosure of its addictive potential,” the inaccessibility or incomprehensibility of the medical literature to an average consumer, the unlikelihood that consumers would inquire about kratom when “purchasing from third parties or online,” and packaging that mimics that of well-known supplements and caffeinated energy drinks. “Within this broader landscape, a reasonable consumer contemplating a purchase of Defendant’s Products—which Defendant markets and packages as though they are innocuous health supplements—would have no reason to suspect or inquire whether they contained an opioid-like substance with serious addictive risks.”

Fraud by omission claims also survived.

Court sours on WSI's claims against Quince

Williams-Sonoma, Inc. v. Last Brand, Inc., 2026 WL 2970363, No. 5:25-cv-10118-EJD (N.D. Cal. Sept. 30, 2026)

Williams-Sonoma (WSI), which also owns Pottery Barn, West Elm, and Rejuvenation, sued Last Brand, commonly known as Quince, for state and federal false advertising. The court dismissed the claims. The parties compete in the market for kitchen and home goods. “Quince advertises that it sells products comparable to those of traditional retailers like WSI, but at significantly lower prices. To accomplish this, Quince represents that it partners directly with factories to cut out the middlemen, design and produce Quince’s products, and ship the products straight to their customers—thereby passing on the savings to their consumers.”

WSI alleged that the cost savings were actually the result of cutting corners and compromising quality, making comparisons to WSI’s products false.

First, the court found that Rule 9(b) applied to the Lanham Act claim since it sounded in fraud (even though courts often don’t do this in trademark cases).

WSI alleged that Quince falsely represented that certain products were made of Global Organic Textile Standard-certified (“GOTS-certified”) cotton or organic long-staple cotton, citing a Wirecutter review that questioned the GOTS-certification of Quince’s towels, and then explained that, when reached for comment, Quince confirmed that the certification of the towels was actually under review and that it would be removed from its website. Wirecutter also questioned the GOTS-certification of Quince’s bedsheet sets, but later verified this certification, and expressed skepticism at statements on Quince’s website that its bedsheet sets were made of “organic long-staple cotton” based on a sustainable-fashion expert’s opinion that it is impossible to have cotton that is both organic and long-staple.

WSI relied only on the Wirecutter article, which didn’t satisfy Rule 9(b). It didn’t explain “when, where, or what Quince said as to the GOTS-certification of its towels. As to the bedsheets, the statements made in the Article alone are insufficient to plausibly allege the falsity of the bedsheets’ GOTS certification or Quince’s claim that the bedsheets’ cotton is both organic and long-staple.” Wirecutter’s skepticism was insufficient; neither the expert it talked to nor WSI allegedly actually tested Quince’s cotton or investigated its origins. The article even said that GOTS confirmed the certification, and anyway WSI didn’t point to any Quince ad making the challenged representation. A false advertising claim can’t be based “solely on statements made in a sewn-in label that a consumer would not see until after purchasing the product, as such labels are not considered advertising.”

example Beyond Compare chart

Quince provides a “Beyond Compare” chart on many of its product webpages, providing a side-by-side comparison of each product’s price, delivery cost, provision of warranty, and other considerations. WSI argued that Quince’s charts were literally false because they state or imply that Quince sells the same products that WSI sells but for less. The court found that they didn’t. There was no express statement that the products were the “same,” nor a clear implication. The charts “simply compare the two companies’ products (as well as those of other companies) side-by-side and indicate how the products are similar but also different.”

“Like” Pottery Barn/West Elm/Williams Sonoma statements, e.g. “Like Pottery Barn rugs, but half the price”: Similarly, “like” means “similar to.” It was implausible that a reasonable consumer would conclude based on these “like” statements that Quince and WSI sell identical products.

“Plus, it’s 50% less than other brands for the same product.”: In an Instagram ad, a woman states that “I couldn’t justify spending $300 on bedding at Pottery Barn,” and that she purchased a duvet cover from Quince because “it’s 50% less than other brands for the same product.” WSI alleged that this was literally false, but the court agreed with Quince that, in context, it wasn’t literally false. Among other tings, overlaid text in the ad states that Quince’s duvet cover is “50% LESS than Pottery Barn and [Restoration Hardware],” and reasonable consumers know that Pottery Barn and Restoration Hardware, which are separate companies, sell distinct products. Thus, one “reasonable interpretation of this ad is that Quince sells the same type of product—i.e., duvet covers—as WSI but not the exact same products.” And WSI didn’t allege facts showing misleadingness.

Also, WSI didn’t allege facts to support its conclusory assertion that Quince’s products were inferior. It cited only a single customer review describing a Quince Sectional as being not “comparable to ... [Pottery Barn]” and states “in this case you truly get what you pay for.” “The Court cannot plausibly infer from a handful of negative reviews that Quince’s products are of inferior quality, particularly in light of the number of positive reviews and without any facts as to the comparable quality of WSI’s products.” Even if WSI had alleged such facts, it didn’t plausibly allege deception from “one lone customer review,” who might not even have been misled themselves.

WSI’s claim that the Beyond Compare charts falsely magnify the savings consumers can expect by purchasing from Quince also failed. For example, Quince advertised a handwoven jute rug that it sells for $299.90, and listed a Pottery Barn rug in the Beyond Compare chart as selling for $599.90. WSI alleged that Pottery Barn’s “Haven Jute Braided Rug,” with similar attributes as Quince’s rug, actually costs $399. Quince responded that that rug was not handwoven, as Quince’s was, and that Pottery Barn’s $599 “Delmont” rug had the same attributes as Quince’s rug and is handwoven. Moreover, the charts disclose that Quince gathered competitor pricing information within a specific timeframe and that pricing is subject to change. WSI argued that this disclosure was an admission that the listed competitor pricing was false and misleading, but the court didn’t agree.

“That WSI points to other similar WSI products with lower prices does not make it plausible that Quince advertised false prices. Nor has WSI pled specific facts to show that a reasonable consumer would be misled into believing that WSI sells no other similar products, at lower or higher prices, than the WSI product listed in Quince’s chart.” Without falsity, there was no need to consider any effect of the disclosure, but it wasn’t an admission of falsity.

Similarly, it wasn’t false not to identify a specific competing WSI product, and WSI’s argument that Quince didn’t substantiate its claims of sameness was irrelevant because lack of substantiation can’t support a private plaintiff claim.

Finally, WSI alleged that Quince misrepresented its product reviews: an ad stating “[Quince’s] Duvet Cover Set Has 1,000+ 5-Star Reviews” was allegedly literally false, and another stating that “200,000 5-star reviews can’t be wrong” was both false and misleading. In addition, WSI alleged that Quince misleadingly rounded up the average number of stars received by a product. For example, Quince’s representation of “***** (447 REVIEWS)” at the top of its duvet cover set product page allegeldy falsely implied that the product received 447 five-star reviews, but the average rating was 4.7. And customers can earn points for leaving reviews; they can redeem 1,000 points for $10 off. This is allegedly false and misleading “because Quince fails to disclose that its reviews are incentivized.”

WSI alleged that the duvet cover set actually had fewer than one thousand five-star reviews in September and October 2025, when the ad was running. Quince’s factual dispute (it argued that WSI miscounted) didn’t matter for plausibility, but WSI failed to plead facts showing materiality or injury.

As for “200,000 5-star reviews can’t be wrong,” which was allegedly false because the Quince cookware set depicted in the ad only had 37 reviews, the court agreed that one plausible meaning was that it referred to all Quince product reviews. It was also plausible that it was misleading, but WSI didn’t plead facts showing misleadingness.

As for rounding up product ratings, the court found that additional context proximate to the “5 star” statements clearly showed that the product received an average of 4.7 stars. “The exact product rating is conveniently available to customers before visiting the product page, as well as displayed at the top of the review section of each product page itself. It is, thus, implausible that most reasonable consumers would not understand that the stars displayed at the top of the product page are rounded and be misled given the surrounding context.”

Review incentives: Quince argued that customers receive the incentive simply by writing a review, regardless of whether the review is positive or negative. And Lanham Act claims have to involve affirmative statements, not pure failure to disclose.

As for unpled falsity, the different kinds of falsity alleged by WSI failed to plausibly allege that “all of Quince’s false advertisements are similar such that the Court can consider them as a whole. Nor does the Court find that WSI has sufficiently alleged representative examples of this larger fraudulent scheme under Rule 9(b)’s heightened particularity requirements.” To be sure “WSI need not plead every instance of Quince’s alleged false advertising,” but the current complaint didn’t offer “any parameters or limitations as to this amorphous false advertising scheme” that would put Quince on notice of the claims against it. “Nor is Quince better situated to know the content of all of its advertisements, as Quince’s website and advertisements are publicly available.”

The court did find that WSI had standing under California consumer protection law, reasoning (correctly in my view) that although UCL etc. false advertising liability requires that the consumer rely on the false advertising, it does not require that the plaintiff do so as long as there is harm causation.

consumer false advertising plaintiffs can't use surveys the way competitors can

Sinatro v. Barilla America, Inc., No. 22-cv-03460-ASK (N.D. Cal. Sept. 30, 2026)

Deception of a substantial number of reasonable consumers, even well less than a majority, can be the basis of Lanham Act liability. But consumer protection cases have difficulty handling this, and so they make up all-or-nothing tests. Here, that means nothing.

closeup on challenged claim

Sinatro sued Barilla for the usual California claims, alleging that the claim “Italy’s #1 Brand of Pasta” on its boxes deceived consumers into thinking it was made in Italy from Italian ingredients when, in fact, that pasta was made in the United States from non-Italian ingredients. (This claim has now been removed.) On each of the relevant boxes, the side label with nutrition facts also included the representation “Made in the U.S.A. with U.S.A. and imported ingredients” in white text directly beneath Barilla’s name and location, which are statements required by FDA regulation.

side disclosure

nutrition panel

In Sinatro’s survey, 57 percent indicated that the statement “does communicate” that “[t]he product’s ingredients are sourced from Italy,” 32.3 percent indicated that the statement “does not communicate this,” and 10.7 percent selected the “Don’t know / not sure” option. A separate conjoint survey found a 9.9% price premium associated with the claim.

plaintiffs' survey prompt

Barilla’s survey replicated Sinatro’s but included five—instead of just one—possible interpretations. In response, 84.0 percent of respondents answered affirmatively for “[t]he brand is the most popular pasta brand in Italy,” while 42.3 percent did so for “[t]he product’s ingredients are sourced from Italy.” Perhaps unsurprisingly, Barilla’s surveyor decided to remove certain “inattentive” or “confused” respondents from the sample, reducing the 42.3 percent “from Italy” figure to either 34.2 or 27.5 percent, depending on how you counted, whereas the 84.0 percent “most popular” figure remained nearly unchanged (dropping only to 83.5%).

Barilla survey prompt

I would note that these reduced figures are more than enough to win a Lanham Act false advertising claim. Also, the reduction came from counting misunderstandings of other claims, which is one way of declaring a bunch of actual consumers to be unreasonable. (The 34.2 percent figure comes from eliminating respondents who indicated that a “[n]on-GMO” label means that the product is gluten free, while 27.5 percent comes from eliminating these same respondents and also those who indicated that the Challenged Representation means that “[t]he brand is the oldest producer of pasta in Italy.”)

Did the survey even matter? Front-of-product deception is actionable under consumer protection law despite qualifiers on the side panel, but only if the front is “unambiguously” deceptive. This isn’t the Lanham Act concept: a front label is not “ambiguous” “simply because it is susceptible to two possible meanings” but rather “when reasonable consumers would necessarily require more information before reasonably concluding that the label is making a particular representation.” That is, reasonability is interposed as a separate, normative screen, regardless of what a substantial number of consumers actually think.

The court excluded plaintiff’s survey under Daubert. (Again, there’s plenty of Lanham Act precedent, but courts tend not to cite across regimes, which given the different meanings of “ambiguous” is probably overall a good thing, though a comprehensive harmonization would also be welcome.) The court found the consumer perception survey biased (and also criticized the conjoint analysis because it “impermissibly measures the undifferentiated impact of all interpretations of the Challenged Representation without isolating the impact attributable to only misleading interpretations”).

The survey asked only whether the package conveys that “[t]he product’s ingredients are sourced from Italy,” and provided only three possible responses: an affirmative answer, a negative answer, and “[d]on’t know / not sure.” This was biased because by only asking that one question, the survey steered respondents “to that very meaning and gives them no opportunity to indicate other meanings.” This seems inconsistent with most Lanham Act survey cases, which generally (1) allow questions about specific messages, at least after an initial “did the ad say anything about?” question, and (2) treat offering yes/no/not sure options as enough to avoid impermissible leading.

The court also held that the survey “fails to capture the possibility that respondents understand the Challenged Representation to have multiple meanings,” and thus couldn’t assist the trier of fact.  The don’t know/not sure option wasn’t enough because the survey design “bias[es] the survey by suggesting to respondents, at least implicitly, that they should believe there is at least some sort of relationship between the different items when the possibility might not even have occurred to the vast majority of consumers who see the items.”

Survey respondents who answered [the] question affirmatively might have never made an association with Italian ingredient sourcing had the survey not fed it to them. And respondents who normally would think the statement means something else entirely may have abandoned that opinion upon intuiting from the survey itself what they should take the Challenged Representation to mean. A “[d]on’t know /  not sure” option does not negate such effects, because the question by its design elicits them before respondents even go to choose an answer.

Query: Under this analysis, is any closed-ended question allowable?

Without the survey, “no reasonable juror could conclude on the remaining record evidence that ‘members of the public are likely to be deceived.’” Named plaintiffs’ testimony wasn’t enough because, “[a]lthough surveys and expert testimony regarding consumer expectations are not required, a few isolated examples of actual deception are insufficient.”

To the extent that the words “Italy’s #1 Brand of Pasta” make a claim about brand—namely, that Barilla is the foremost brand of pasta in Italy—undisputed record evidence showed that Barilla had leading market share, and the court also found this the most plausible meaning.

So, would consumers necessarily require more information before concluding that the pasta was Italian in origin? The court rejected the most “plaintiff-friendly” reading of 9th Circuit precedent, which would find ambiguous only those labels that “ma[k]e no representation at all” or, like “Nature Fusion,” “[are] so devoid of any concrete meaning that there [is] nothing from which any inference could be drawn or on which any reasonable belief could be based.” That would make ambiguity essentially a puffery defense. The court wasn’t willing to do that; to do so would mean finding the front label ambiguous “because it is at least amenable to the (undisputedly false) meaning that the Plaintiffs here advance—i.e., that the pasta is made in Italy with Italian-sourced ingredients.”

But using this standard “would effectively mean that any label susceptible to at least one concrete false meaning would be actionable.” [Note that this is in fact the rule in Lanham Act cases, where a substantial number of reasonable consumers would receive this message as shown by acceptable evidence of actual consumer reception. This is because Lanham Act plaintiffs are allowed to aggregate consumer behavior even if we accept substantial variation among consumers; probabilistic liability is ok for them, whereas consumer plaintiffs must rely on a presumption that all consumers are likely to be deceived, so courts set the standard higher (even though that’s not strictly logically entailed).] Anyway, to do so would be inconsistent with Trader Joe’s, which found that “100% New Zealand Manuka Honey” could support multiple meanings, including such false meanings as “that its contents were 100% derived from the Manuka flower.”

Thus, Barilla’s front label was ambiguous, and the survey, even if admissible, didn’t address ambiguity and even reinforced the conclusion that the brand popularity meaning was the predominant one.  “[A] reasonable consumer would necessarily require more information before concluding that the statement should instead be understood to mean something else entirely. Accordingly, Barilla has made no ‘unambiguously deceptive’ claim.” And the side label clarified US origin, making it not misleading as a matter of law.

The court further justified its holding as providing an easily administrable rule to lower courts and clear guidance to retailers. “[S]ellers may have confidence that so long as they do not make ‘unambiguously deceptive’ statements on their front labels, they may rely on their back and side labels to clear up misunderstandings.” And if consumers unreasonably persist in being fooled, so much the worse for them!

Schedule A false advertising TRO dissolved for the defendants who showed up

Kiel James Patrick, LLC v. Partnerships & Unincorporated Associations Identified on Schedule A, 2026 WL 3015613, C.A. No. 25-cv-633-MRD-AEM (D.R.I. Oct. 7, 2026)

KJP filed a Schedule A claim against a bunch of defendants for false designation of origin/false advertising; many defaulted, while two answered and got the TRO against them dissolved.  

KJP sells seasonal and festive sweaters; defendants sell competing sweaters. The defendants argued that particularized review of the claims against them was appropriate; KJP disagreed, arguing that the defendants delayed unduly and pointing to the allegations the court had previously accepted in granting and extending the TRO, which thereby became a preliminary injunction. The court was not impressed by KJP’s argument.

False designation of origin: KJP failed to show that the answering defendants used its photos. KJP alleged that, even if they didn’t copy the photos exactly, they re-generated them using AI. (Why this would violate the Lanham Act, especially given Dastar, is left as an exercise for the reader.) The basic problem was that there was no evidence “that the challenged images were copied from [KJP’s] website, altered from [its] photographs, or generated by AI to impersonate [it].” Instead, the answering defendants offered product-image evidence from an “independent sourcing agent, 1688.com,” as their source. “A review of Plaintiff’s website further reveals that the images submitted by the Answering Defendants look dissimilar to Plaintiff’s advertising materials, even if there is some similarity between the sweaters.” That similarity wasn’t confusion about origin.

False advertising: This was the same theory that defendants used KJP’s advertising materials, particularly its website images, without permission. KJP argued that defendants sold “imitation” products. But that’s not a false representation, nor does it show consumer deception. “Furthermore, there is no evidence on the current record that the Answering Defendants copied Plaintiff’s trademarks or made a particular claim about their products that is verifiably false or misleading.”

As Eric Goldman has often noted about Schedule A cases, these allegations, at least as to these defendants, should have been thin enough to deny the TRO; the plaintiff apparently didn’t supply convincing pictures even when challenged to do so.

dismissal of NYC's consumer protection claims against fossil fuel companies affirmed

City of New York v. Exxon Mobil Corp., 2026 WL 3023932, Appeal No. 6583, --- N.Y.S.3d ---- (App. Div. Oct. 8, 2026)

False advertising claims against fossil fuel companies for contributing to climate change are hard to win. The City alleged that defendants engaged in “deceptive ... trade practice[s]” proscribed by the City’s Consumer Protection Law (CPL) “by misrepresenting the purported environmental benefits of using their fossil fuel products” (“product greenwashing”) and “by creating a misleading impression of the role of renewables [i.e., renewable energy] in their businesses” (“corporate greenwashing”). The appellate court affirmed the dismissal of the claims.

Product greenwashing: The alleged deceptiveness came from failure to disclose that fossil fuels contribute to climate change, but the connection was already public information. If, as alleged, consumers care about fossil fuels’ contribution to climate change, they couldn’t be duped by failure to disclose. This was true even if the court didn’t apply the reasonable consumer standard but rather the older standard: the effect the statement would have upon a consumer falling within the ranks of “the ignorant, the unthinking and the credulous who, in making purchases, do not stop to analyze but are governed by appearances and general impressions.” “Because the statements at issue disclose that the improved products are gasoline, even unsophisticated consumers – given the City’s foundational assumption of near-universal understanding of the link between gasoline use and climate change – would necessarily understand that use of the improved products contributes to climate change.” Comparative statements that improved products would produce fewer emissions than other gasoline products could not “lead even an incautious consumer to understand defendants to be representing that the environmental impact of use of the new products to power private vehicles would be comparable to the impact of taking public transportation, bicycling, walking, or using electric or hybrid cars.” Nor were defendants required to quantify the reduction in emissions in their ads. “Nor has the City come forward with evidence that the reduction in emissions made possible by the gasoline products at issue is so minute, as compared to other gasolines, as to be legally insignificant.”

As to the corporate greenwashing claim, the court concluded that the complaint did not sufficiently allege that the statements were “made in connection with the sale” or “offering for sale” of “consumer goods or services” “because none of the clean alternative energy products referenced in the statements were sold to consumers, either in New York or anywhere else.”

Although the CPL bans conduct that “has the capacity, tendency or effect of directly or indirectly deceiving or misleading consumers,” “[e]ven an allegation that a statement has the tendency to indirectly deceive a consumer must still be ‘made in connection with the sale’ of a consumer good or services” to fall within the scope of the prohibition.

would-be competitor lacks Lanham Act standing

Onego Bio Inc. v. Clara Foods Co., 2026 WL 3033777, No. 1:25-cv-01131-JDW (D. Del. Oct. 9, 2026)

Onega Bio sought a declaratory judgment that defendant EVERY’s patent covering recombinant ovalbumin protein was invalid and unenforceable and that Onego didn’t not infringe the patent, but there was no imminent, substantial controversy between the parties. I’ll focus on the also-failed Lanham Act false advertising claim.  

Onego, according to the complaint, “specializ[es] in the production of animal-free egg proteins through precision fermentation” and “aims to revolutionize the food industry by offering sustainable and ethical alternatives to traditional egg products.”

“In 2024, Onego secured funding to scale-up production and expand its market presence in North America.” It plans to build a 130,000-square-foot facility in Wisconsin to produce its protein product. “As part of Onego’s expansion efforts in the United States, Onego has shipped its protein products here.”

EVERY competes in the market for animal-free egg proteins (using yeast instead of Onego’s fungi). EVERY allegedly made false representations about its own product by claiming in press releases and presentations that the egg protein it makes is “equivalent,” “bio-identical,” and “nature-equivalent” to what is found in natural eggs, while allegedly EVERY’s egg protein in fact contains up to 13 amino acids not found in natural egg protein, including amino acids from yeast proteins.

The court held that Onego lacked statutory standing; it didn’t plead injury to commercial sales in more than conclusory fashion. The complaint didn’t allege that Onego makes or sells its products in the United States. Shipping protein products into the US wasn’t enough, given that Onego hadn’t even broken ground on its planned production facility.  “At most, Onego’s allegations suggest that it hopes to enter the U.S. market and become EVERY’s competitor. Thus, there is no basis for me to presume that Onego suffered a commercial injury.”

Nor did reputational harm claims fare better. Onego didn’t plead facts supporting its assertion that EVERY’s claims about its own product harmed Onego’s reputation. Nor did alleged risk to the egg protein replacement market as a whole state a cognizable injury, even if that market is nascent.

candy buyers fail to allege difference between pumpkin & Jack-o'-lantern shape

Vidal v. Hershey Co., No. 24-60831-CIV-DAMIAN, 2026 WL 2730302 (S.D. Fla. Sept. 16, 2026)

Reese's Peanut Butter Pumpkins with carved face on package

actual candy

There’s a Reese’s Peanut Butter pumpkin. It was advertised with a Jack-o’-lantern package, but the actual pumpkin-shaped chocolate had no such face. The package that says, in all capital letters: “DECORATING SUGGESTION.” (So you’re supposed to carve off little strips of chocolatey coating? With what tools? Hope your house is really cool, given the pliability of the coating at room temperature!) It is possible to make chocolates with molds that would give them Jack-o’-lantern faces.

Jack-o'-lantern molds for candy

 Plaintiffs sued for false advertising under the Florida Deceptive and Unfair Trade Practices Act (FDUTPA).

The court found lack of standing due to lack of injury in fact. “A plaintiff may establish a concrete injury-in-fact under a benefit-of-the-bargain theory by showing that they paid for a product but received something of lesser value or that was completely worthless.” FDUTPA “does not provide for the recovery of nominal damages, speculative losses, or compensation for subjective feelings of disappointment.”

Plaintiffs didn’t that the Reese’s Peanut Butter Pumpkins they purchased were not edible or that they suffered any side effect, health issue, or harm from consuming the product. Nor have did they allege that the sale of the Peanut Butter Pumpkins was illegal. So there was no benefit-of-the-bargain injury.

This was true even though plaintiffs alleged that they purchased the products at issue “for the novelty/party-display value of the depicted faces, not merely for generic chocolate-and-peanut-butter candy.” Still, “their only injury is their subjective disappointment.” And the disclaimer “DECORATING SUGGESTION” was next to the image of the carved chocolate pumpkin; while the product may not have the “cool looking carving of a pumpkin’s mouth and eyes,” it does have “a novel pumpkin shape.”

A price premium theory also failed despite allegations that, “[i]n retail commerce, Reese’s Peanut Butter Pumpkins are priced higher per ounce than regular Reese’s Peanut Butter Cups across mainstream retailers and the manufacturer’s website.” But they only alleged a price premium at Target, Walmart, and Hershey’s, not at Publix where they bought. (This seems like a perfectly reasonable inference, though, and plaintiffs did allege that this was representative. Ah, the manipulability of Twiqbal.) But also, that still didn’t show economic injury, because plaintiffs still received candy actually shaped like pumpkins, which could also justify a price premium.

Amicus in section 230 false light case

 The EFF, Eric Goldman, Jess Miers, Mark Lemley, and I filed a brief in Does 1-10 v. Freesites in the Fourth Circuit, arguing that context--the other third-party content surrounding a post--cannot be the basis for a false light claim against a host site. 

Amicus in Rise & Shine

 I've submitted a brief on behalf of trademark scholars in support of neither party.

Summary of argument:

The issue before the Court is whether trademark strength in a likely confusion analysis is a question of fact or a question of law, but this question actually bears on the confusion inquiry as a whole. Sometimes, factual issues predominate in this consideration, but sometimes legal issues do.

This conclusion may sound surprising given the phrase “likelihood of confusion,” which sounds empirical. The full version of the standard—likely confusion among a substantial number of reasonable consumers—clarifies that normative legal judgments (what is substantial, what is reasonable, and what constitutes confusion) are crucial to infringement inquiries. Infringement inquiries therefore are mixed questions of law and fact in which legal analysis can often predominate.

The hallmark of fact finding that deserves appellate deference and clear-error review is individualized adjudication. The multifactor framework to assess likelihood of confusion that courts have regularly used in the 80 years since the enactment of the Lanham Act involves propositions that sound factual, but that have never—not in this case, nor in any other—been tested by factfinding at the district court level.

This includes the question of trademark strength. The theory that “suggestive marks are conceptually stronger than descriptive marks with secondary meaning, thus favoring the plaintiff more in the confusion inquiry,” is not an “adjudicative fact” found by the factfinder based on individualized evidence.

Contrary to some suggestions in Petitioner’s brief, conceptual strength inquiries do not involve direct investigation of consumer understanding of the extent to which a word functions to indicate source when applied to a product. Conceptual strength is partly empirical (involving an assessment of, inter alia, dictionary definitions and other marketplace uses) and partly a matter of prediction about whether people will need to use “imagination and thought” to connect a word with the goods or services at issue. No trademark is “suggestive” or “descriptive” as a state of nature; Judge Friendly accepted that his division was “rough[]” at best. Abercrombie & Fitch Co. v. Hunting World, Inc., 537 F.2d 4, 9 (2d Cir. 1976).

Furthermore, the propositions that suggestive marks are “stronger” than descriptive marks with secondary meaning, and thus that, all else being equal, a mark’s status as suggestive makes confusion more likely than if it were descriptive, are broad claims about reality.

Courts evolved the multifactor confusion test over time, and they are still adding variations for new situations—as they should be. As with many torts, the existence of trademark infringement (given a set of adjudicative facts) is a classic mixed question of law and fact. No resolution of this case should treat either likelihood of confusion or trademark strength as a purely factual question.

it's hard to get rid of a foreign TM owner's complaint at the motion to dismiss stage despite territoriality

Honest Greens Barcelona, S.A.U. v. Poky’s LLC, 2026 WL 2593358, No. 4:24-cv-07023-JD (D.S.C. Sept. 2, 2026)

Honest Greens operates restaurants in Spain and Portugal under the HONEST GREENS name and related marks; it owns registrations for HONEST GREENS in several foreign jurisdictions, and allegedly developed substantial goodwill through restaurant operations, advertising, digital platforms, and social media. It also alleged “substantial contact with United States consumers” by selling meals to customers from the US. It also alleged that it marketed its services to United States consumers; received tens of thousands of visits to honestgreens.com from United States IP addresses; since 2021, has attributed at least seven percent of its sales to customers using United States-based credit cards; identified more than 36,000 United States-based users who have downloaded its mobile app; and has approximately 8,000 United States-based users following its HONEST GREENS Instagram account. The app permits users, including travelers in the United States, to place an order in advance for collection at one of HG’s European restaurants.

Poky’s allegedly uses the domain name <honestgreens.us>, a website, a mobile application, and the Instagram username HONESTGREENS.US to promote a Myrtle Beach restaurant operating under the HONEST GREENS name. The complaint alleged consumer confusion, including a message asking, “Same menu as honest greens abroad?” and another reporting, “I’ve placed this order but it got sent to the wrong location in Myrtle Beach.”

For statutory standing, Poky’s noted that HG didn’t allege that a consumer chose Poky’s Myrtle Beach restaurant instead of an Honest Greens restaurant in Spain or Portugal, and that one or two instances of online confusion are too isolated to establish a plausible causal connection with harm to HG. This might be true later on, but at the pleading stage HG did enough. It alleged a US-facing commercial reputation as well as injury to that reputation from the allegedly confusing restaurants, which sufficed for proximate causation.

Although Belmora cautioned that “[a] few isolated consumers” who merely confuse a domestic mark with one seen abroad, without additional misleading conduct, would rarely state a viable claim,” HG alleged additional conduct including use of the .us domain when HG’s identical .com domain was unavailable for the same general category of restaurant services and an alleged specific intent to deceive consumers as to source or sponsorship. “Whether Plaintiff can prove intentional copying, meaningful United States goodwill, or material confusion is a later question.”

Poky’s also argued that, without US restaurants, HG could obtain neither an injunction (Dawn Donut) nor damages. True, the relevant cases make geographic market separation “highly relevant, particularly to likelihood of confusion and territorial injunctive relief, but they do not establish the categorical rule Defendant proposes.” Again, a motion to dismiss did not determine whether the evidence could ultimately show “sufficient confusion, market penetration, or reputational injury.”

However, because false advertising requires more evidence than trademark infringement, the false advertising claim failed. The complaint didn’t identify a false or misleading statement of fact or a misrepresentation of a specific characteristic or quality, nor did it allege materiality. 

An ACPA claim over the domain name also survived because the complaint plausibly alleged a bad faith intent to profit. At this stage, it was enough to allege Poky’s knowledge of the mark, intent to infringe, and confusing similarity, even though Poky’s use of the domain name to operate a real restaurant “may be relevant to the totality of the circumstances and to Poky’s contention that it is a legitimate concurrent user.”  “[T]he pleaded consumer diversion facts, not mere knowledge of the .com domain or similarity of names, are what permit the ACPA theory to survive at the pleading stage. Whether the proof ultimately shows only ordinary infringement rather than cybersquatting remains for the developed record.”

And HG didn’t need to plead a South Carolina registration to bring common-law claims.

dct strikes down California's new recyclability law on vagueness/1A grounds

California League of Food Producers v. Bonta, 2026 WL 2055589, No. 3:26-cv-01675-WQH-BLM (S.D. Cal. Jul. 14, 2026)

Trade associations challenged a California law about recyclability claims; the court found it unconstitutionally vague and also unconstitutional under Central Hudson. Basically, the law provided that using a recycling symbol would be deemed deceptive or misleading “unless the product or packaging is considered recyclable pursuant to statewide recyclability criteria and is of a material type and form that routinely becomes feedstock used in the production of new products or packaging.” Something would be deemed recyclable if it was collected by jurisdictions including least 60 percent of the population of the state and processed by facilities that serve 60 percent of recycling programs statewide. But the standards for “routinely becoming feedstock” and other key terms were too vague, even for an economic regulation; there was no scienter requirement to mitigate its harshness. The state’s own reporting disclaimed comprehensiveness. Defining a consumer good as “recyclable” if it can be “conveniently recycled” in California counties with more than 300,000 people offered no guidance as to what recycling programs satisfy the “conveniently recycled” requirement. Reference to outside guidance like the Basel Convention also wasn’t specific enough to provide guidance.

Reference to the APR Design Guide for plastic packaging “does not correspond to other language in the statute because a product or package design that is ‘detrimental to recycling’ or ‘needs improvement’ may reasonably be understood as precluding recycling of that material”—or not. “Constitutional concerns regarding fair notice and standardless enforcement are heightened here because, under California law, the APR Design Guide provision may be enforced by private individuals and local governmental actors and may result in criminal sanctions.” Plus, the Guide described itself as “dynamic” and subject to change as “packaging technologies evolve.” “Manufacturers are left without statutory guidance not only as to whether their compliance will be measured at the time of design, manufacture, or sale of their packaging, but also without reliable information regarding which version of the APR Design Guide will apply. The record indicates that the APR Design Guide has been repeatedly revised after the enactment of [the new law].” Even if the date of design was key, there was vagueness in determining when a package was “designed.”

Similarly, requirements that “plastic products and non-plastic products and packaging” must be “designed to ensure recyclability and [must] not include any components, inks, adhesives, or labels that prevent the recyclability of the product or packaging” were too vague. Determining what “prevented” recyclability requires consideration of not only recycling technologies, but also whether it is “economically feasible” for recycling facilities to ultimately process those materials into feedstock. The court severed all the challenged provisions.

Unsurprisingly, then, the Central Hudson challenge also succeeded. The law directly regulated commercial speech: “environmental marketing claim[s], whether explicit or implied” related to products and packaging.

The legislature couldn’t just declare use of recyclability claims inconsistent with the government’s definition of recyclability to be inherently misleading. [Now do gas mileage calculations.] In the context of recyclability, where there were a lot of variables about local practices, the term was only potentially misleading, not inherently misleading.

California identified two primary government interests: reducing consumer confusion and improving recycling rates. These were substantial.

Did the regulation directly advance those interests? “To satisfy its burden, California must provide evidence establishing that the harms it recites are real and that its speech restriction will significantly alleviate those harms.” However, this does not “require that ‘empirical data come ... accompanied by a surfeit of background information ... We have permitted litigants to justify speech restrictions by reference to studies and anecdotes pertaining to different locales altogether, or even, in a case applying strict scrutiny, to justify restrictions based solely on history, consensus, and ‘simple common sense.’ ”

Under Ninth Circuit precedent,

[A] state can invoke ‘common sense’ only if the connection between the law restricting speech and the government goal is so direct and obvious that offering evidence would seem almost gratuitous. But as the government’s justifications for a regulation become more attenuated, bare appeals to common sense quickly veer into impermissible speculation. In such cases, the state needs to provide evidence to substantiate that its law will meaningfully further its stated objectives.

Plaintiffs argued that uncertainty would chill recycling claims, contrary to the state’s objective. California responded that it was trying to address a different problem: “cross-contamination in recycling streams, which makes recycling less effective.” This process “weakens the recyclables market” by increasing the cost to reclaim materials and reducing the value of contaminated “plastic lots.” But the record didn’t support the government’s position that enforcement would reduce the total amount of material that is deposited into landfills.

The evidence showed that “California faces serious difficulties in efficiently recycling consumer products and packaging, at least with respect to those made of plastic.” And there was evidence that “consumers’ attempts to recycle materials, especially plastic bags, are detrimental to the recycling process because—as a matter of practice—recycling facilities are unable to process these materials and turn them into feedstock that can become new products and packaging.” Thus, “elimination of contaminated materials from recycling streams would benefit the operations of recycling facilities and result in a greater portion of their collected materials being turned into feedstock. But the evidence in the record indicates that … this benefit to recycling facilities would come at the cost of increasing the amount of materials placed in landfills.” Plaintiffs submitted declarations from members stating that the law would require them to omit truthful statements regarding recyclability from their products and packaging, which will result in materials that would otherwise be recycled going to a landfill. California conceded that this would be a short-term effect, but argued that manufacturers would respond by redesigning; this was speculative given manufacturers’ declarations that instead recycling claims would be omitted entirely. “While these declarations are self-serving, Defendant offers no evidence to counter them.”

What about consumer confusion? Plaintiffs argued that consumers would be deprived of “accurate, qualified recycling instructions” for products and packaging that are capable of being recycled. True, there was evidence that consumers lack adequate information about which products to recycle. And the court assumed that “consumers read and consider recyclability claims on products and packaging during their purchasing decisions and at the time that they discard the products and packaging.” But the record was conflicting on whether the law would improve accuracy. Presumably, standardizing the requirements would “facilitate California consumers’ ability to trust that, if a product or package is labelled as recyclable, it will be recycled and turned into feedstock if they place it in the appropriate bin.” And information about recyclability is presumably difficult for consumers to obtain without relying on manufacturers’ representations. But there was also evidence that manufacturers would forgo some recyclability claims, leaving consumers with less information, including “truthful and genuinely helpful information, such as a listing of which areas accept the product or package for recycling and which do not.” [Do such packages with lists actually exist?] And the law “would still leave consumers in dark about whether a package or product marked as recyclable is genuinely recyclable in the consumers’ area—i.e., whether the consumer is in the portion of the state (which can be up to 40%) which does not accept the material for recycling.” Ultimately, the consumer understanding claims were too speculative to support the law.

It followed that narrow tailoring was also not present.  The law failed to leave “breathing room for manufacturers to provide qualified information about their products and packaging,” such as “[n]ot recyclable in most areas; check locally” or a QR code on the packaging with “details regarding the product’s recyclability.” This meant that the provisions of the law that survived vagueness did not survive Central Hudson.

look, there's a lawsuit: bad claim against comedian leads to anti-SLAPP award

Morake v. Mwanyenyeka, No. 2:26-cv-02795-JLS-AS, 2026 WL 2548629 (C.D. Cal. Aug. 28, 2026)

Noted because, well, it’s an unusually bad claim. Morake is the creator and original performer of “Nants’ingonyama bagithi Baba,” the opening chant from Disney’s The Lion King. Mwanyenyeka is a “comedian and content creator” who appeared on a podcast, where he asserted that “Nants’ingonyama bagithi Baba” means “Look, there’s a lion. Oh my god” in the Zulu language. This went viral, and he repeated the joke at various comedy clubs. Morake alleged that this was false and that the true translation of “Nants’ingonyama bagithi Baba” is “All hail the king, we all bow in the presence of the king.”

Morake sued for violation of the Lanham Act, defamation, trade libel, and tortious interference. Mwanyenyeka filed a motion to strike under California’s anti-SLAPP law, and then Morake dropped all the state claims in an amended complaint.

The amended complaint now argued false advertising and false affiliation focused on Mwanyenyeka’s “online storefront marketing an ‘It’s a Lion’ line of apparel and goods derived from Plaintiff’s composition.” (Sighs in Dastar.)

Because this sequence showed that Mwanyenyeka was the prevailing party on the state claims, the court awarded $39,560 in fees.

5th Circuit puts its own spin on the server test

Emmerich Newspapers, Inc. v. Particle Media, Inc., No. 25-60550 (5th Cir. Aug. 27, 2026)

This is being reported as creating a split with the 9th Circuit; I don’t think that’s right in practice. As far as I can tell, the 9th Circuit says that public display is made by the server that transmits the display, while the 5th Circuit says that public display is made by the server that transmits the display. Plenty of good cites to the copyright scholars’ amicus brief that I filed and to the Restatement of Copyright.

The court of appeals also suggested that URLs could constitute CMI, though it recognized that this would often create not just expensive fact-finding but also a separate issue of intentional removal--intentionally removing URLs as a general practice, even if some might be CMI, doesn't seem like it should trigger 1202, similar to the cases holding that stripping metadata from photos isn't actionable even though metadata might sometimes have CMI in it. 

Overall, a good result (and I would have said that even without the repeated citations, promise!).

weak infringement case + bad litigation conduct = fee shift for anticompetitive suit over descriptive term

BBK Tobacco & Foods LLP v. Central Coast Agriculture Inc., No. CV-19-05216-PHX-MTL, 2026 WL 2445019 (D. Ariz. Aug. 20, 2026)

Previously. Although BBK forced Central Coast to an (expensive) trial on its very weak infringement claims over the use of “raw” on smoking-related products, it is now subject to a fee award. “[W]hen a company pushes flimsy legal arguments with scorched-earth, win-at-any-expense litigation to bully its competitors into submission,” it harms consumers by raising prices. “In about two hours, after a two-week trial, the jury returned a verdict fully in favor of Central Coast,” finding no infringement based on the shared word “raw.” “The jury’s verdict makes perfect sense, since the trademarks have nothing else in common other than this three-letter combination. Tellingly, BBK could not introduce a single instance of actual customer confusion.”

But it took over seven years, plus a trip to the Ninth Circuit and the aforementioned jury trial, to get there.

Central Coast (CCA) was the prevailing party because it is now free to use its RAW GARDEN mark without the threat of an infringement suit by BBK. Even though BBK succeeded in voiding CCA’s pending intent-to-use applications, both parties were free to use the marks just as before, and defeating CCA’s cancellation counterclaims left BBK’s registrations just as they already stood. By contrast, “[h]ad BBK prevailed on the infringement claims, CCA would have faced damages and an injunction against its Raw Garden brand, and the defense verdict removed that exposure.” BBK’s successful defense of CCA’s counterclaims didn’t make it a prevailing party, because CCA succeeded on the infringement claims that drove the litigation.

Octane Fitness provides that “[a]n ‘exceptional’ case is simply one that stands out from others with respect to the substantive strength of a party’s litigating position (considering both the governing law and the facts of the case) or the unreasonable manner in which the case was litigated.”

BBK argued that the court of appeals, in reversing the initial grant of summary judgment already found the Sleekcraft factors “evenly matched or tip[ped] only slightly in favor of either party” and remanded for trial, foreclosing any finding that its position was weak. But that’s not what the court of appeals did—it said that likely confusion “is a factual question ordinarily reserved for the trier of fact.” (See Sepehr Shahshahani’s useful Fact-Law Confusion for why this is a silly thing to say.) The Ninth Circuit’s “evenly matched” observation “established only that the question could not be resolved on summary judgment … and, in any event, it described a summary judgment record rather than the proof ultimately presented at trial.” Nor was the panel even unanimous on that point.  

“And this Court, having presided over a two-week trial and observed the evidence develop live before the jury, is well positioned to assess the strength of the merits of BBK’s arguments.” The trial bore out all the weaknesses in the central factors. For example, there was no evidence of actual confusion, even though the RAW and Raw Garden brands had been sold in some of the same California dispensaries together for more than five years. “The absence of actual confusion over so lengthy a period of concurrent use in the same market is itself powerful evidence that confusion is unlikely.”

Nor was this unclear to BBK until trial. At summary judgment, the Court found the record “contain[ed] no evidence of actual instances of confusion,” and that the relevant deposition testimony of BBK’s founder was “uncorroborated and self-serving” and insufficient even to create a triable issue, particularly because BBK’s own Rule 30(b)(6) witness was unaware of any confusion. “That BBK could marshal no more than this, after years of head-to-head sales in the same dispensaries, strongly indicates confusion was not occurring.”

BBK’s affirmative confusion evidence came from a survey that produced net confusion rates of roughly 11.9 percent. Rates in that range are “not so high as to constitute persuasive evidence in favor of confusion,” and “survey confusion numbers that go below 20% need to be carefully viewed against the background of other evidence weighing for and against a conclusion of likely confusion.” Weighed against the marks’ visual dissimilarity and the lack of other evidence of confusion, the survey did not show that confusion was “probable, not simply a possibility.”

Nor was BBK’s position on mark similarity justified. “Marks must be compared as a whole and as they appear in the marketplace, rather than by taking a deconstructionist view of the different components of the marks, and across appearance, sound, and meaning.” Apart from the shared descriptive term “raw,” the Court found the marks “visually...not similar” and possessed of “significantly different commercial impressions,” such that “consumers could readily distinguish between the parties’ products as they appear in the marketplace”—a dissimilarity that “weigh[ed] strongly against a likelihood of confusion.”

But this was not the sole reason to find exceptionality, merely a factor weighing in favor of it.  [Comment: if we’re almost never going to allow TM cases to be rejected at summary judgment, then a fee shift for pressing ahead with an expensive trial despite clear weakness in the case is one of the few remaining constraints on abusive litigation, and should be available even in the absence of litigation misconduct. But that’s a worse solution than just actually applying the summary judgment standard.] “The manner in which BBK litigated this case supplies the additional showing that, combined with the weakness of its proof, makes this case exceptional.”

Most significantly, BBK relied on a photograph of a purported Raw Garden product bearing RAW-branded cones, and the Court sanctioned BBK’s counsel under Rule 11 for advancing allegations about that photograph “that counsel must have known were false.” There was no evidence that BBK itself fabricated the photograph, but counsel had been repeatedly warned was not genuine, “and a party’s counsel’s conduct is properly considered in the exceptional-case analysis. Knowingly pressing fabricated evidence to defeat summary judgment is the sort of conduct that makes a case stand out from others.”

That wasn’t the end of it.

BBK introduced, both before and during trial, late-disclosed evidence of supposed actual confusion that it had never produced in discovery, including an affidavit dated years after the close of fact discovery and testimony that roughly fifty people had approached [its principal] expressing confusion. That testimony was at odds with BBK’s own verified discovery responses, in which it had repeatedly denied awareness of any actual confusion. A litigant’s reliance on confusion evidence it withheld through discovery and sprang at trial supports an exceptional-case finding.

This litigation conduct reinforced the court’s conclusion that BBK “pursued scorched-earth tactics aimed at securing exclusive rights to the ordinary word ‘raw.’” The court noted “BBK’s broader litigation practice of strong-arming other companies out of using the term.” It repeatedly threatened and sued businesses that incorporated “raw” into their marks. “Trademark law does not exist to let a single company annex a common, descriptive word and wield costly infringement suits to keep competitors from using it.” Octane Fitness allows the court to consider anticompetitive motive. “The trial record indicates that part of BBK’s aim was to position itself to claim the ‘raw’ name for its own use as the cannabis market moves toward national legalization.”

CCA got over $2.5 million in fees, less than half of what it requested. So BBK was still able to impose a lot of costs on it.