CA6 interprets literal falsity narrowly but says materiality implements the standing requirement, yay

Victory Global, LLC v. Fresh Bourbon, LLC, --- F.4th ----, 2026 WL 836221, No. 25-5173 (6^th Cir. Mar. 26, 2026)

Lower court decision discussed here.

Victory Global, d/b/a Brough Brothers claims to have become the “first” African American-owned company to distill bourbon when it opened its physical distillery in 2020. But Fresh Bourbon counters that it was the “first” because its owners physically distilled their brand at another company’s distillery two years earlier. Brough Brothers sued for Lanham Act false advertising, but failed to identify any unambiguously false statements or evidence of deception. The court of appeals affirmed the grant of summary judgment to Fresh Bourbon.

Brough Brothers sold their its batch of bourbon under the Brough Brothers label in 2020. The bottles truthfully disclosed that they were distilled in Indiana. On New Year’s Eve in 2020, they distilled their first bourbon in Kentucky.

Fresh Bourbon distilled using another distillery’s space starting in 2018; eventually, Fresh Bourbon’s employees knew what they were doing and got “free reign” [sigh] of the Hartfield distillery. It first sold its bourbon made at Hartfield in 2020, using Hartfield’s federal license to sell to distributors. The label stated: “Distilled and Bottled by Buchanan Griggs Inc. Paris, Kentucky For Fresh Bourbon Distilling Company[.]” Fresh Bourbon owned the recipe for this bourbon, and Hartfield agreed not to make it for others. Eventually, Fresh Bourbon opened its own distillery and distilled its first batch either in late 2022 or in early 2023.

“Given that Brough Brothers and Fresh Bourbon developed side by side, various sources have made different claims about who came first.”

“If a defendant makes a literally false statement, the defendant can identify no possible framing in which one could consider the statement true.” [This is an overstatement—we can always imagine secret definitions that make a statement true.]  By contrast, a misleading statement “requires a reader to engage in some mental processing to determine its truth or falsity.” [Also wrong: the whole point of falsity/misleadingness is that the reader does not know the truth by way of the statement. A misleading statement requires some inference that leads the reader to a false conclusion; the mental processing is the process of determining what the statement is saying.] “If, for example, an ambiguous statement is true under one interpretation but false under another, the statement qualifies as potentially misleading (not literally false). The same rule covers a technically true statement that lacks important details.”

The court noted that other circuits have split over whether the false/misleading line matters to materiality. Now here’s a line I like a lot: Materiality “implements the statutory causation requirement because a business is not ‘likely to be damaged’ from a claim that will not affect a consumer’s decision on which product to buy.” The court declined to weigh in on the split here (correctly recognizing that the Fifth Circuit had mistakenly cited it as already having resolved the issue; indeed, the Fifth Circuit cited its misunderstanding of other courts’ holdings as the reason it adopted a separate-evidence-for-materiality requirement; the split emerged from a game of Telephone).

Anyway, Brough Brothers bet it all on literal falsity. But none of the categories of challenged statements met the “high” bar for literal falsity.

First: The first to African Americans to “distill,” “produce,” or “develop” Kentucky bourbon since the Civil War. For example, Fresh Bourbon’s profile on X called the company’s bourbon the “first ... developed grain to glass by African Americans in the state of Kentucky.”

Brough Brothers’ expert conceded that it was “impossible to verify” whether other African American distilleries existed before these two companies because of the history of ignoring Black history. “At least with respect to other bourbon makers, then, Fresh Bourbon’s statements are not ‘verifiable’ as false on this record.” So the alleged falsity was the message that Fresh Bourbon made bourbon at its Lexington distillery before Brough Brothers made bourbon at its Louisville distillery, when the truth was that Brough Brothers obtained its distilling licenses and made its first batch of bourbon at its own distillery in December 2020 before Fresh Bourbon completed the same tasks years later. “If, then, the challenged statements unambiguously suggested that Fresh Bourbon opened its physical location before Brough Brothers, they would likely be literally false.” 

But there was another “reasonable” reading [applying the correct standard rather than the “any reading” standard]: “that Fresh Bourbon’s agents made its Kentucky bourbon first—no matter the physical distillery at which it did so.” And that was true. Fresh Bourbon’s founders participated in the distilling process at the Hartfield distillery starting in 2018. During this time, Brough Brothers sourced their bourbon from Indiana and did not help this producer in the distilling process. Under these circumstances, there was ambiguity.

Brough Brothers argued that a party does not “distill,” “produce,” or “develop” bourbon unless the party obtains licenses to open a distillery.

But this technical claim has no place in the “literally false” calculus—which requires a “bald-faced” lie. Fresh Bourbon’s use of these verbs does not meet that high standard. In ordinary language, one would naturally say that a party distilled or produced bourbon when the party put the raw materials into a still and took the other steps necessary to create the alcoholic beverage at the end.… These verbs also would remain accurate even if the party lacked a license.

The legality claim thus “conflicts with the ordinary understanding of the words.” And the facts showed that Fresh Bourbon’s team did more than buy bourbon on Hartfield’s license; they physically participated in the distilling.

Second: “[C]onsidered to be the first black-owned distillery in Kentucky.” This phrase came from the Kentucky Senate’s resolution praising Fresh Bourbon in February 2020, to which Fresh Bourbon’s website links. Brough Brothers argued that it opened its Louisville distillery before Fresh Bourbon opened its Lexington one, making this literally false.

But there was no evidence that Fresh Bourbon itself ever claimed to have opened the first African American-owned distillery in Kentucky. That the Kentucky Senate “considered” it to be the first, even if misleading, wasn’t literally false. Also, “distillery” could mean different things in different contexts. Although both dictionaries and Kentucky law define the term as meaning a place where distilled spirits are made, “consumers do not necessarily flip open a dictionary or check statutes when evaluating products.” And Fresh Bourbon introduced evidence that companies often call themselves a “distillery” even when they are “having a spirit bottled for” them by others. Brough Brothers itself registered the name “Brough Brothers Distillery” in 2018—years before it opened its physical location. The resolution itself suggested that this was how the Kentucky Senate used the term, because it stated elsewhere that Fresh Bourbon had “announced that they plan to build” a physical distillery in Lexington. “[I]t would have made little sense for the resolution to refer to Fresh Bourbon’s (unconstructed) venue as the first.” Under the understanding of “distillery” that means a company that sells bourbon, Fresh Bourbon sold Kentucky-made bourbon while Brough Brothers still sold Indiana-made bourbon, so that was true.

Brough Brothers argued that Fresh Bourbon drafted the resolution and was thus responsible for it, but the Senate didn’t use the language that they drafted, which didn’t include the challenged statement. Thus the court didn’t resolve the question of whether a state Senate resolution could be attributed to a private party for Lanham Act purposes.

Likewise with other claims; the Senate resolution also said that Fresh Bourbon “produces bourbon in the state of Kentucky with an African American Master Distiller, the first in Kentucky since slavery[.]” Brough Brothers argued that this statement was literally false because the putative master distiller lacked the qualifications: “20+ years of experience operating a distillery,” according to its expert. The putative master distiller “worked full time at a bank and merely had an interest in bourbon as a hobby before he took the job with Fresh Bourbon.” But the record showed that whether a producer qualifies as a “master distiller” was opinion not fact; as one witness said, the term is “more of a symbol” that some distillers coined in their marketing to become “rock stars with the bourbon people.” He testified that there is “no set experience level” or “no set anything” for that matter; the claim that a master distiller must have 20 years’ experience would disqualify Brough Brothers’ own master distiller. Brough Brothers’ expert conceded that it “[b]asically” boils down to “a matter of opinion,” which is fatal to a Lanham Act claim.

The court also declined to hold that these statements added up to falsity by necessary implication. Unfortunately casting doubt on whether the circuit actually recognized the doctrine, it understandably refused to “combine statements from different sources into one ‘overall marketing scheme.’” Context is vital, but “we have never treated every advertisement that a business has ever made as the relevant ‘context.’” Even considered together, however, the challenged statements were still ambiguous.

Cal. anti-SLAPP law protects trailer for show that allegedly promised more fight than it delivered

Camper v. Paramount Global, 2026 WL 836249, No. B339150 (Cal. Ct. App. Mar. 26, 2026)

Camper “viewed a trailer for the reality television show College Hill: Celebrity Edition, which referenced, but did not show, a physical altercation between two cast members.” Camper alleged that he was misled by the trailer and other promotional materials to believe the show would include the full altercation and therefore paid for a subscription to the online streaming service BET Plus. When the show did not include any additional footage of the altercation, he sued for false advertising and related claims.

The trial court granted Paramount’s anti-SLAPP motion to strike.

Camper alleged that the trailer showed an argument between two of the show’s stars about racial identity, then showed one getting up to confront the other, then cut to other cast members yelling. Based on the trailer, “media interviews regarding the season, and a circulated screenshot of a physical fight released by” respondents, Camper allegedly bought a subscription to BET Plus so he could watch College Hill. At the moment of the fight, the show displayed the following message, “Out of respect for all parties involved, we have chosen not to show this fight.”

Paramount denied releasing the screenshot presented by Camper, or “any other screenshot depicting a physical altercation” between the cast members, “as part of an official marketing campaign or for any other purpose.” It also argued that it did not exercise any control over the interview given by a cast during which she discussed the fight, since by the time the interview was recorded, she had been expelled from college and had left the cast of College Hill.

The trial court concluded that the television program and associated promotional activities constituted protected speech in connection with an issue of public interest, as the episode involved “discussions of issues regarding race and racial identity, and the physical fight that is at the center of [Camper’s] claim arose out of a dispute on that topic.” Camper’s claims under the UCL, FAL, and CLRA failed because he could not establish that “it is probable that a significant portion of the general consuming public or targeted consumers could be misled by the trailer.” The court found that the physical altercation “was depicted in the episode, with a level of graphic detail that was greater than that in the trailer,” including that it showed an “opening swing” by one cast member, followed by “an extended segment of violent and disturbing audio that leaves no doubt that a physical fight is occurring,” as well as “audio of other classmates’ reactions during and after the event.” The trial court found that the scene “is much more dramatic than what is shown in the trailer, and nothing that is in the trailer is left out of the scene.” The court further noted that “there is nothing in the trailer that indicates how the fight would actually be depicted in the episode.”  

The court of appeals agreed. Camper argued that the trial court should have applied an exception for commercial speech, but the anti-SLAPP law carves out an exception from the commercial speech exception when an action is “based upon the creation, dissemination, exhibition, advertisement, or other similar promotion of any dramatic, literary, musical, political, or artistic work, including, but not limited to, a motion picture or television program.”

Camper had no evidence that a significant portion of reasonable consumers viewing the College Hill trailer could be misled to believe that the show would include additional footage of the physical fight. Declarations from Camper and one other viewer regarding their expectations were insufficient, especially since all of the footage in the trailer related to the fight was shown during the episode, as well as audio recordings capturing the fight and onlookers’ reactions to it. (Nor did he show causation given that he subscribed before the cast member interview.)

abortion clinic can proceed with false advertising claims against for-profit ad agency and (in part) the anti-abortion "center" it touted

Four Women Health Servs., LLC v. Abundant Hope Pregnancy Resource Center, Inc., No. 1:24-cv-12283-JEK, 2026 WL 836424 (D. Mass. Mar. 26, 2026)

Four Women is a licensed healthcare clinic that provides reproductive healthcare, including abortion care, to its patients. Abundant Hope is a “nonprofit crisis pregnancy center” that opposes abortion operating in a neighboring building. Four Women sued for state and federal false advertising; the court dismissed the Massachusetts Chapter 93A claim against Abundant Hope but denied dismissal as to the Lanham Act claim. Four Women also stated a plausible Chapter 93A claim against CLM, “a for-profit entity paid by Abundant Hope to make allegedly misleading advertisements about the services provided at the Attleboro Women’s Health Center.” The other defendants weren’t reachable under Chapter 93A because “Abundant Hope is a nonprofit that did not charge for its services, which advanced its pro-life mission, and its officers furthered that charitable mission.”

In 2018, Abundant Hope relocated next door to Four Women and put the name “Attleboro Women’s Health Center,” or “AWHC” for short, on its office. AWHC purports to furnish patients with free medical services, including ultrasounds and pregnancy consultation, testing, and diagnoses, but “is not a separate corporate entity from Abundant Hope, nor is it a licensed medical provider.”

Abundant Hope hired CLM, a for-profit marketing agency in Missouri, to manage that website and place advertisements on Google promoting AWHC to women seeking abortion care. Abundant Hope approved the language drafted by CLM. CLM also provides Abundant Hope with the contact information of potential clients and describes the services that they are seeking based on forms that those “leads” completed on AWHC’s website or elsewhere.

The alleged falsities: On its website and in Google advertisements, AWHC is advertised as a “Women’s Health Center” that has performed hundreds of “medical” tests and appointments and that can furnish “medical services,” including pregnancy testing and ultrasounds. But AWHC does not employ an on-site licensed doctor or Advanced Practice Registered Nurse, and state law requires such licensed medical professionals to diagnose the viability and location of a fetus.

AWHC also allegedly encourages women to access its services by falsely representing on its website that an ultrasound and a determination regarding viability are necessary to obtain an abortion.

AWHC’s website misrepresents that AWHC provides abortion care by listing “abortion” first in the “Options” page and, on the “Abortion” page, urging women who are “thinking about abortion” to “MAKE AN APPOINTMENT.” The website also includes a client testimonial describing AWHC as a “[g]reat place for women considering abortion.” While other pages on AWHC’s website include a small disclaimer at the bottom that AWHC does not perform abortions, these pages and its other advertising contain no such disclosure. Google advertising further implies that AWHC performs abortions because AWHC appears among the first Google search results for “abortion near me attleboro ma,” with an advertisement for scheduling an appointment and links to “Abortion Cost,” “Abortion Pill Info,” “Abortion Clinic Info,” and “Abortion Info.”

Four Women alleged diversion: Between January 2023 and August 2024, 591 patients called both AWHC and Four Women. Many women “unknowingly provided their contact information to Abundant Hope through AWHC’s website or CLM’s Google advertising,” and AWHC allegedly schedules appointments with callers without informing them that it does not furnish abortion care and, once on-site, offers them pamphlets falsely stating that abortion is “dangerous” in order to deter them from going to Four Women.

Chapter 93A prohibits “an unfair or deceptive act or practice” between those “engage[d] in the conduct of any trade or commerce.” Abundant Hope and its officers weren’t engaged in “trade or commerce,” which the law defines, in relevant part, to “include the advertising, the offering for sale, rent or lease, the sale, rent, lease or distribution of any services.” This language “indicates an intent that the services be distributed in exchange for some consideration or that there must be other strong indications that the services are distributed in a business context.”

Using a for-profit marketing agency didn’t change that calculus; “[i]n most circumstances, a charitable institution will not be engaged in trade or commerce when it undertakes activities in furtherance of its core mission.”

However, defendant CLM was a for-profit entity that has been paid “substantial sums” by Abundant Hope to advertise AWHC’s services. “CLM is therefore operating in a business context by receiving payment for its advertising services, and its activities fall squarely within the definition of ‘trade or commerce’ under Chapter 93A.” It wasn’t immunized just because its profit-making activities could be said to further the core mission of a nonprofit organization.

CLM also argued that, since Abundant Hope couldn’t be held liable under Chapter 93A, it couldn’t be held liable for what was essentially aiding and abetting. “But under Massachusetts law, one entity’s participation in another’s tortious conduct can lead to liability under Chapter 93A, even if the other entity is not subject to Chapter 93A liability.”

And its conduct in advertising/running the website was plausibly misleading, even if everything it produced was literally true. It was also plausible that the deception injured Four Women by diverting patients. Four Women alleged multiple specific instances in which women sought abortion care at Four Women but, as a result of confusion, ended up at AWHC.

Lanham Act: Why a different result for Abundant Hope on “commercial advertising or promotion”? The complaint adequately alleged that the defendants had an economic motive and thus engaged in commercial speech. Even though Abundant Hope is a nonprofit organization that provides free services at AWHC, “as a for-profit business, CLM has a clear economic incentive and is paid to promote AWHC’s services.” Nor was AWHC’s provision of free services and its status as a nonprofit organization dispositive. A nonprofit organization’s promotional advertising of services can directly relate to its “ability to fundraise and, in turn, to buy more advertisements.”

Abundant Hope’s paid promotion of its services included $38,846, or nearly 17% of its total functional expenses, in 2022 alone. And Abundant Hope “promotes its diversion of patients from Four Women and AWHC’s provision of free services in its fundraising.” Because Abundant Hope “has a direct economic stake in the provision of its ... service[s]” and advertises those services “in the hopes of realizing an economic gain” through fundraising “rather than merely informing the public or pursuing its ideological views, it may reasonably be viewed as economically motivated.”  

Four Women also adequately alleged that the defendants’ representations were made with the intent of influencing potential customers to purchase the services offered at AWHC; “purchase” here doesn’t require an exchange of money. [Probably more to the point, the word “purchase” in the Gordon & Breach test isn’t part of the statute, and we should be reasoning about what “commercial advertising or promotion” means rather than what a word from Gordon & Breach means.] And [although Lexmark should have abrogated this element], the complaint plausibly alleged commercial competition in the market for reproductive health care.

Materiality: Defendants admitted that AWHC is not “a licensed medical provider” or “facility” and “has never been licensed by the Massachusetts Department of Public Health to provide medical care,” but  they identify AWHC as Abundant Hope’s “medical” arm that furnishes “medical” services; promote AWHC as providing “medical appointments and medical tests” on its website; and advertise elsewhere, including on Abundant Hope’s website, that AWHC provides “medical” services to women, including pregnancy testing and ultrasounds. “These statements give the mistaken impression that AWHC is a medical provider that lawfully performs the identified medical procedures.” Likewise, misleadingly suggesting that an ultrasound and a determination regarding viability are necessary preconditions to obtaining an abortion, and misleadingly suggesting that AWHC provides abortion care, were plausibly material for the same reasons they were plausibly misleading. The complaint also provided examples of actually deceived consumers, giving rise to an inference of materiality.

First Amendment: Four Women’s claims do not target any speech the defendants wish to make, or have made, about their pro-life viewpoint or any of their views about the propriety of abortion. Rather, the claims are narrowly addressed to AWHC’s advertisements and website content that, as alleged, contain false or misleading information and divert women seeking abortion care from Four Women. Where, as here, a plaintiff plausibly alleges that the defendant engaged in commercial speech through false or misleading advertisements, the First Amendment does not provide refuge from claims under the Lanham Act or Chapter 93A.

Cases like NIFLA weren’t apposite, because Four Women wasn’t a government actor and it was challenging only false or misleading advertising, not seeking to compel speech. [Yeah, good luck with that on appeal.]

challenge to whether certification agency did its job can't be used to disprove an establishment claim

McKeon Rolling Steel Door Co. v. U.S. Smoke & Fire Corp., 2026 WL 865699, 1:23-cv-8720 (ALC) (S.D.N.Y. Mar. 30, 2026)

McKeon sued defendants for false advertising under NY and federal law. I’m ignoring the trade secret counterclaim.

McKeon and USS&F compete in the market for commercial and special purpose safety assemblies, focusing here on fire shutters that close openings in buildings and block the passage of flames and gas in the event of a fire. Fire shutters are installed in public buildings, including hospitals, schools, and airports; they descend from ceilings if there is a fire. Building codes throughout the United States require that fire shutters be tested and certified by UL 10B Standard for Safety.

Defendant Guardian tests products, sometimes with third-party help; once it deems a product certified, it posts that to its website. Once the products at issue were deemed “certified” by Guardian, defendant USS&F posted the certification information on its publicly accessible website.

They argued that the statements were literally true because USSF’s products were tested by a third party, a certified testing agency; the tests were witnessed by Guardian, and Guardian issued certifications that the products were UL 10B certified.

McKeon argued that, even though the products stated they were UL 10B certified, they were not properly certified. McKeon had obtained what defendants deem “confidential test reports” and interpreted the results to determine whether the products should have been certified to UL 10B standard. McKeon argued that it was bringing an establishment claim, by which it sought to prove that “the Test Reports do not support the proposition for which they were cited; namely, that the subject Products meet the UL 10B certification requirements.”

The court found summary judgment appropriate, because this wasn’t a case where the claim was “tests prove X,” but rather “this product is accredited by a third party.” And that was true. The court found that cases allowing challenges to the reliability of claim-supportive testing were about protecting consumers against unfounded superiority claims. Here, there was no superiority claim, so there could be no establishment claim. [This distinction seems wrong to me, even if summary judgment is correct on these facts. Certainly statements that “tests prove” a monadic claim (e.g., treats headaches) or an equivalence claim (as good as) should also be able to be falsified.]

Instead, the court looked to Board.-Tech Elec. Co. v. Eaton Corp., 737 F. App’x 556 (2d Cir. 2018), which rejected a challenge to whether a competitor’s light switches should have actually been certified by the UL. “Without any indication that UL decertified the defendant’s product—or (perhaps) that the defendant’s product had materially changed since certification—there would be no plausible allegation of a false statement.” Here, McKeon conceded that it didn’t have a certifier re-test the products at issue, or provide evidence from a testing agency that the products didn’t meet the standard, or provide evidence that there was in fact no accreditation. Thus, the statements were literally true.

court enjoins lawyer from using exaggerated/distorted animation of misfiring gun in advertising

Sig Sauer, Inc. v. Jeffrey S. Bagnell, Esq., LLC, No. 3:22-cv-00885 (VAB), 2026 WL 867181 (D. Conn. Mar. 20, 2026)

Bagnell, a lawyer, commissioned a graphics company to create an animation purporting to show how a P320 pistol could misfire absent a trigger pull, known as an “uncommanded discharge.” He later posted that animation to YouTube and published it on his firm’s website; he represents plaintiffs who claim that they have been injured by uncommanded discharges from P320s.

The court granted a permanent injunction against Bagnell’s advertising use, though cautioning that the issue here was not “whether the P320 pistol can misfire or undergo uncommanded discharges, or whether that issue should properly be the subject of litigation elsewhere, or public commentary anywhere.”

Commercial advertising or promotion: Lawyer advertising is commercial speech, and the animation was made for the purpose of influencing potential clients. It was available online. Even if it also was attempting to raise awareness about a public safety concern, “[a]dvertisers should not be permitted to immunize false or misleading product information from government regulation simply by including references to public issues.”

Falsity:

The P320 is a striker-fired pistol, meaning that a pull of the trigger initiates a sequence of internal components to move, culminating in the releasing of a compressed spring, which drives a pin forward to impact the cartridge, causing the gun to fire. The Animation, which is approximately five minutes long, claims to show how vibrations or sudden movements could cause the P320 to fire absent a trigger pull.

The animation opens with a written message that the P320 contains a “mechanism of failure,” “suggesting that the following sequence is that mechanism.” It then depicts a CT scan of a P320 before moving into fully animated renderings of the internal components of the firearm combined with text guidance that it is possible for the P320 to have a “defective discharge” with “no trigger pull.”

The court found that Sig Sauer demonstrated that it would not be possible for the P320 to have the “mechanism of failure” specifically depicted in the video, and identified five literally false statements within the video about specific components of the pistol.

First, the video falsely depicts malformed versions of two P320 components, the sear and the striker foot, as having “inset surfaces,” which could lead to an unsafe “rollover condition.” Sig Sauer’s expert witness demonstrated that both components are flat with straight edges, making “rollover” impossible.

The animation showed a lumpy striker foot based on a photo that the lawyer knew depicted grease buildup. [Though knowledge isn’t required.]

Second, the video falsely depicts the slide’s ability to move up away from the frame, allowing the striker foot to walk up off the sear and fire without a trigger pull. This wasn’t physically possible: two steel parts—the slide and frame rail—merged into each other in an obscured part of the video. Yellow lines show the location of the slide channel, and a red box shows the location of the rail: An accurate depiction would have the red box sitting inside the two yellow lines.

Third, there were key differences between the striker’s so-called safety notch depicted in the video and the actual P320 striker safety notch, which is angled and undercut:

Although this portrayal allowed them to claim that the safety lock could slip over the safety notch to result in an uncommanded discharge, “the physical geometry of the components prevents this from occurring.” The safety notch as depicted in the video is 50% shorter than the actual component, adding credibility to the otherwise inaccurate claim that the lock could slide past the notch.

Fourth, the safety lock appeared less stable in the video than it is in reality: the video showed a bulbous, rounded appearance fitting loosely against the striker, while the real striker safety lock has flat edges and is tightly fitted against the striker.

The video falsely represents the dimensions of the striker foot and striker housing by depicting “[e]xcessive space” between the two components.

These false claims “distort the firearm’s components and safety features to support a claim that sudden impact or vibration leads to unintentional discharge.”

Materiality: A firearm’s safety to its bearer is plainly an “inherent quality or characteristic” and “likely to influence purchasers,” as YouTube comments like “Should I stop carrying my P320?” and “This is definitely plausible and very well described ... BTW I own a Sig M18 with a safety” showed.

Defendants didn’t rebut the resulting presumption of irreparable harm, even if Sig Sauer couldn’t show lost sales. The video was viewed as many as 37,000 times on YouTube over the seven-month period before it was taken down, and at least 80,000 times on another website. For injunctive relief, that was enough. First Amendment concerns were minimal because this was a post-trial order dealing with commercial speech, not a prior restraint.

Preventing use of the video for advertising purposes “does nothing to prevent the Defendants from continuing to practice law, represent plaintiffs against Sig Sauer, publicly express opinions about Sig Sauer or its products, or using even this version of the Animation in the context of other litigation.” The court took no position on whether the animation would be admissible in a tort case and suggested that its decision was narrow and its injunction should not “be construed to affect the ability of the Defendants to use any image, take any position, or make any argument to a court in any other litigation.”

Court enjoins T-Mobile's "Save over $1000" campaign for comparing apples to oranges

 Cellco Partnership v. T-Mobile USA Inc., 2026 WL 867129, No. 26-cv-0972 (LAK) (S.D.N.Y. Mar. 30, 2026)

Verizon sued T-Mobile for false advertising and the court granted a preliminary injunction, finding that T-Mobile’s claims that switchers could “Save Over $1,000” were likely false. As the court explains:

The cellular service industry is dominated by three large providers that fiercely compete to wrest customers from each other and to attract new ones. Price (or perceived price) is among the most important subjects of competition. Much provider advertising seeks to induce competitors’ customers to “switch” to the advertising provider. It often does so by claiming that the advertiser’s service is the cheapest.

The court agreed that the new campaign compared apples to oranges.

Verizon’s pricing strategy allows customers to customize their plans by adding optional “perks,” bundled together and offered at a discount compared to what the selected services (e.g., HBO and Netflix) would cost individually.

T-Mobile, by contrast, includes some benefits, such as a smaller, select set of streaming services, for no or little additional cost. It also includes T-Satellite, a network of low-orbit satellites that provide cellular service in parts of the United States that otherwise are unserved by terrestrial cellular networks. (T-Satellite is available to customers of other service providers, but few Verizon customers buy it.)

Previously, Verizon challenged T-Mobile’s “Save Up to 20%” campaign before the NAD, which recommended that “T-Mobile discontinue the challenged claims” because (a) “consumers are not likely to expect the value of ancillary benefits to be included in a savings comparison,” and (b) the terms that would enable a customer to save 20 percent were “not clear and conspicuous and further contradict[ ] the message of the broad comparative savings claim.” The NARB on review upheld that recommendation in part because “many reasonable consumers will conclude that the promoted savings is based on the cost of the wireless plans without any adjustments for additional benefits.” On January 22, 2026, the NARB found that T-Mobile still had “not made a bona fide attempt to” comply with aspects of its decision.

Instead, the “Save Over $1,000” campaign features claims that customers can save over $1,000 per year by switching from Verizon’s Unlimited Ultimate Plan or AT&T’s Unlimited Premium Plan to T-Mobile. This campaign tells customers that they can “[s]ave on streaming, satellite, and more benefits the other big guys leave out.” The fine print reads:

Savings vs. comparable plans at AT&T and Verizon plus the costs of optional benefits; plan features and taxes and fees vary .... With 3+ lines of Better Value Plan, 3+ new lines & 2 eligible ports or 3+ lines & 5+ years on T-Mobile postpaid plan required. Qualifying credit [required].

T-Mobile’s online calculator shows the a bunch of purported monthly cost comparisons between T-Mobile’s Better Value Plan and Verizon’s Unlimited Ultimate Plan, where services are listed as “included” through T-Mobile but extra through Verizon. Adding up the cost comparisons, T-Mobile’s calculator purports to show that its Better Value Plan costs customers $143 per month, whereas Verizon’s supposedly comparable Unlimited Ultimate Plan costs customers $260 per month, or a difference of $1,404 per year.

Verizon also has claimed in ads that its service is cheaper than those of its competitors. Until at least the T-Mobile campaign’s launch, Verizon offered its own interactive calculator that customers to toggle adding to their plan certain features, such as streaming bundles, that Verizon offers and then purported to show what a T-Mobile or AT&T customer purportedly would have to pay to obtain those same benefits.

Verizon’s core objections were two: “First, the campaign compares the promotional rate T-Mobile charges to new customers to Verizon’s nonpromotional rate, ignoring Verizon’s promotional rate of $175 per month. Second, it attributes to Verizon the costs of ancillary benefits that T-Mobile includes in its plan without charging T-Mobile the costs of ancillary benefits Verizon includes in its plan.”

T-Mobile counterclaimed that Verizon was falsely advertising its own “Better Deal,” but didn’t move for a preliminary injunction.  

For likely success on the merits, only falsity and materiality were contested. First, the court found that the “Save Over $1,000” campaign “necessarily implies” that customers can save over $1,000 per year on a comparable plan by switching from Verizon’s Unlimited Ultimate Plan to T-Mobile’s Better Value Plan. “That message is false. Instead of putting comparable plans side-by-side, T-Mobile engages in an apples-to-oranges comparison at every step of the way.” First, the undisclosed comparison of Verizon’s nonpromotional rate ($195 per month) with T-Mobile’s own promotional rate ($140 per month). It attempts to define away that problem by arguing that “$140 for three lines is the standard rate for T-Mobile’s Better Value [P]lan” was “akin to comparing an apple to an orange.”

T-Mobile argued that the comparison was reasonable because it “targets existing Verizon customers,” who supposedly would not be “eligible for Verizon’s promotional price.” “But nowhere in the campaign does T-Mobile indicate that it is speaking to only the subset of Verizon customers who are paying Verizon’s nonpromotional rate.” Verizon’s promotional rate lasts for three years, and using the term “switch” didn’t convey any limit on the claim.

Then, T-Mobile compared the price for each of three streaming services that it includes at little to no additional cost in its Better Value Plan to the full cost of each of Verizon’s bundles that include the relevant streaming service. “Yet, T-Mobile neither credits Verizon for the value of the additional services included in Verizon’s bundles nor charges T-Mobile for those services, which are not available through the Better Value Plan.” It also charged Verizon for the “sticker price” of T-Satellite too, even though T-Mobile controls how much to charge Verizon customers for T-Satellite and even though most Verizon customers do not purchase T-Satellite.

It was not enough that T-Mobile disclosed its inputs and methodology, because the plans were different, but T-Mobile portrayed them as “equivalents in all ways other than in price.” This is literally false by necessary implication because it portrays “non-comparable products ... as otherwise equivalent (except for the superior or inferior aspect being illustrated in the advertisement).” “Accounting for Verizon’s promotional rate and the ancillary streaming benefits it offers in its bundles that T-Mobile does not and removing from Verizon’s side of the figurative ledger the cost of T-Satellite, the supposed savings fall to a mere $228.84 per year.”  

Finally, the campaign’s price guarantee of five years applied to only “the cost of voice, data, and texting on T-Mobile’s cellular network,” or “the price of the rate plan,” not the ancillary streaming benefits or T-Satellite. This was a “crucial fact” but disclosed “at best indirectly, in fine print, and only on some advertisements.” That didn’t change “the unmistakable message of the campaign that a customer can save over $1,000 per year by switching to T-Mobile.” That was literally false.

Materiality: “Claiming a price difference between two purportedly comparable products is material. Indeed, T-Mobile’s claim of immateriality is nonsense for the obvious reason that it is inconsistent with its decision to launch the campaign and with its repeated arguments that enjoining the campaign would harm its ability to communicate the value of its services and compete in the cellular service market.”

Verizon was thus entitled to a presumption of irreparable harm that was not rebutted by delay. The ongoing dispute over a different ad campaign didn’t affect the fact that Verizon “promptly” filed suit after the “Save Over $1,000” campaign launched.

Nor did Verizon’s allegedly bad conduct in substantially similar advertising affect the balance of equities. Even assuming that Verizon’s “Better Deal” campaign was false, Verizon took down its competitive grid before suing. Its position “must be judged by the facts existing as they were when this suit was begun, not by the facts existing in an earlier time .... Conduct which came to an end prior to the events which are in issue cannot constitute an unclean hands defense.” Even if that were not the case, it still would be “better to remedy one wrong than to leave two wrongs at large,” “particularly where the harm damages not just the parties but also the public.” The counterclaim was the right place to address Verizon’s bad behavior.

 

WIPIP Panel 6: Design and Brand; Protectable Subject Matter; Copyright Theory and Doctrine II

A Pantone Prerogative: Defining the Privilege to Standardize Color (Felicia Caponigri)

Color standards have been around for a long time. Pantone developed standards and uses its system to promote the colors; registration for the matching system and the color chip. Does it have ©? Some © in its booklets—pre 76 Act case, pre Feist, where Pantone successfully won a PI against a competing seller of booklets. © in taxonomy?

Pantone does a lot of licensing—the business model is based on collabs, licensing their chips, selling services to companies that then advertise that they are using a specific Pantone color, or has Pantone christen a color for them. Other companies describe their registrations in Pantone colors. Require companies not to reverse engineer; authenticity and consistency claims are also used.

Should brands that standardize avoid certain claims? Pantone doesn’t seem to be trying to litigate against competing standards but maybe that’s lack of competition. Maybe a patchwork of IP rights leaves room for a private standard, but not every brand can standardize color. Europe requires some kind of identifier for registration, whether Pantone or otherwise.

Fromer: does Pantone dominance allow businesses to chill each other with color ownership claims? Or does that come from the companies no matter what?

When Procedure Becomes Policy: The Hidden Substantive Effects of the Design Law Treaty (Christine Farley)

Int’l design law becoming a thing as we speak. New WIPO treaties: Treaties on IP, Genetic Resources, and Associated Traditional Knowledge, and Riyadh Design Law Treaty.

There’s no underlying harmonization with design law: thresholds, scope, etc. Once we put procedure before substance, that procedure closes the opportunity for countries that haven’t developed their own design law to debate what that law might look like.

This treaty was promoted by high-income countries: the industrial design five, which already take most advantage around the world of filing for design registrations. 75% of designs applied for around the world come from China, EU, Korea, US, and Japan. 2.9% Africa, Lat Am & Oceania; 22% rest of world. Not very important for local industry in many places.

Substantive choices hidden in procedural drafts: the idea of harmonizing application procedures—a “closed list.” Any adherent can only ask about certain things in its application. Can’t ask about whether design derived from traditional cultural expression/resources/knowledge; whether design was made from AI; whether design was made w/federal funding; any characteristics of applicant that might enable fee reduction. African group did secure disclosure that a treaty adherent may require that an application contain info, including information on TCEs and TK of which the applicant is aware, that is relevant to eligibility.  

Requires allowing for partial designs by providing for allowing matter that doesn’t form part of the claimed design if shown by visual means like dotted/broken lines; partial designs are not even contemplated by most jurisdictions.

Provision for technical assistance to implementing countries.

Room for maximalism: countries can always grant more protection.

Provision to allow maintenance of application unpublished for a minimum of six months.

Copyright & Living Organisms (Cathay Smith)

GloFish: registered trademark for glowing fish, genetically altered—but © rejected. The GloFish company owns a number of utility patents related to them; wants to look at potential design patents. Living organisms can be goods for TMs, e.g. Galactic Purple by GloFish. Could a fish be considered product design trade dress? Not sure.

Small number of decisions have rejected living matter as original works of authorship b/c they don’t owe their expression to human creativity and aren’t fixed. The GloFish, for example, was not the equivalent of using paint on a canvas. Living works of authorship can’t meet the originality requirement. Also, they just aren’t copyrightable subject matter.

But should © exclude original expression solely on the basis that the subject matter is living?

Using organism as medium of expression; canvas of expression; or work itself.

Medium: floral gardens, arrangements, Chapman-Kelly v. Chicago Parks Decision. While individual living flowers might not be ©, unique arrangement into shape of peacock could be protected.

Canvas: applying human-created art to pigs, cats via tattoos; painting cockroaches.

Work itself: the GloFish; genetically modified poinsettia plants. Modified to exhibit creative expression. The GloFish passes its genes on; the painted fish is created with injecting color and does not pass on the colors. Is that more like using the fish as a canvas?

Tree shaping can involve training living trees to have them grow naturally in design or physically trimming them to create specific designs.

Should we limit based on process of creation, or would it be better to have a straight rule about subject matter? What about dead organisms—copyrightable then? Art made with flowers, taxidermy?

Q: if allowed, why wouldn’t that allow © of dog breeds? [raises issues of visual primacy in ©]

A: can’t see getting dog breed through the © standard, but originality is possible in the future.

Q: © as a rule of evidence by Doug Lichtman: a lot of doctrines are actually evidentiary including how do you know whether there was copying. Copying in fact is going to be difficult for a living organism.

Q: patents can only cover discoveries; 102(b) says (c) doesn’t cover discoveries—seems like they’re mutually exclusive.

RT: Selection, coordination and arrangement as a principle that helps distinguish the hedge animals and trained trees from the “canvas” cases? Are these useful articles? If so: Design of/design on distinction, suggested by design patent? Program your genes to express pigment to display a tattoo, which is that?

Q: what about patents?

A: might cover different things—e.g., if GloFish is ©able then painted fish might infringe, whereas painted fish wouldn’t infringe patent on GloFish.

Copyright Theory and Doctrine II

The Snoopy Solution: Copyright Safety and Licensing Opportunities for Generative AI (Matthew Sag)

[came in late] Disney has a 1-year exclusive deal with Sora; the cost to user expression will essentially disappear. Filtering is not all bad when recognized as a licensing opportunity—social costs decline & harms of infringement reduced.

Silbey: how to think about secondary liability and photocopy machines in light of your argument—although our uses of photocopier could be licensed, the machine maker doesn’t pay.

A: AI companies aren’t just passive—they make so many choices in model design, data curation, and 1000s of steps in between, so they aren’t simply intermediaries. Ultimately the user provides the final command, but this isn’t as simple as primary and secondary actors. We have secondary liability b/c sometimes it seems appropriate to hold a noninfringer liable for infringement. But that presupposes being able to distinguish primary from secondary, which is volitional conduct. Volition is about role in selection, not just whether there’s automated behavior. Courts could say this is volitional, or that being automatic is close enough.

Rosenblatt: distributive impacts. Who’s paying for the license, and we’re asking not about the work but about the use of the work post-Warhol. Who’s negotiating the license? The big players, not independent artists. Who’s going to pay for the cost of the license? It will be transformative users.

A: yes, massive distributional consequences.

The Artist Signature as Source (Peter Karol)

Book project on TMs and art. Basic claim: larger project—artist signature or monogram is quintessential TM but long relegated to outer rim of TM practice and doctrine. Would be improved by increased acceptance of and appreciation of artist marks as historic and core TMs. And Art Law would be improved by centering TM law in regulating creation & distribution of art works—as proof, he got put on a copyright panel!

Art historical literature on history/purpose of artist signature. Western: 12^th century—not beginning in the Renaissance. Michelangelo signed one work (it says that he is making it, which was common in early signatures); one subsequent account says that he resented hearing the work attributed to another.

Modern obsession w/signature: estate stamp applied by Monet estate. Warhol had works signed for him by his mother or by an assistant who copied his mother’s version.

Dual explanations in the art historical literature: Authorial (source-based): artist has aegis or authority in having supervised and given imprimatur to final product as finished good ready for public sale or consumption; signer stands behind this thing, and different from other things w/o that signature.

Autographic/auratic: the signer personally touched or physically rendered the thing under observation such that we feel we are in the embodied presence of the worshipped figure. Spiritual, akin to role of relic or letter hand written by Abraham Lincoln.

Perhaps there’s a movement from authorial to autographic after the Renaissance.

Some early signing practices were religious—wanted credit at Judgment Day; wanted people to pray for them; pride/ego. Pragmatic business considerations esp. for workshops. Especially when we see the market rise instead of direct patronage, where signing wasn’t as important as the patron already knew the commissioned artist. Advertising/goodwill function of signature as well. Also a signal of completeness. Legal benefits/requirements: required by guild or otherwise. Market demand, especially 18^th C. on. All consistent w/ TM concept.

Derrida: signature tethers artist to work while making it repeatable/iterable. But individual artists’ signatures change a lot over time.

Criminal identity theft case from 2025: source is not identity; forging name on art was not identity theft b/c it didn’t involve transferring, possessing, or using the means of ID of another person as required by statute. Forgery was misrepresentation of origin, not identity.

Heymann’s previous work on The Birth of the Authornym is also relevant.

Silbey: what about when the author hides themselves in the work, like a participant?

A: yes, being broad about definition of signature. That’s a little different than TM, more like a selfie.

Fromer: Dastar!

RT: Real issue is that TM isn’t TM any more! The description is of classic TM function, but immediately it’s worrisome to think of treating a signature as modern TM b/c it would extend © infinitely and do a bunch of other things.

A: Yeah, one point is that understanding the signature as a core example could remind us of what TM was supposed to do.

Heymann: transferability of personal names—designers have signed away the right to use their names.

A: art scholarship connects the signature to the rise of notarial practices—a signature has legal effect.

Buccafusco: compare novels: people (subset) want signed copies of novels, allographic v. autographic.

WIPIP Panel 5: Trademark Doctrine

 The Arbitrary Myth (Dustin Marlan)

Connecting the Abercrombie critique literature w/some of the critical/cultural appropriation theory. Judge Friendly says: it need hardly be added that fanciful and arbitrary terms enjoy the protection accorded to suggestive terms. Catachresis: strained metaphor—arbitrary marks are not typically empty vessels but palimpsests. Amazon: river/warrior woman—vast, wild, overflowing abundance. Apple: fruit/Eden/knowledge—nature, simplicity, rebellion. Etc.

Empirically: arbitrary marks underperform as source indicators: 76.7% as compared to 100% for fanciful. Lowest overall recognition and recall across Abercrombie categories; worst overall liking ratings compared to descriptive, suggestive, and fanciful. Kohli & Suri, Brand Names that Work (2000).

Culturally, TM facilitates transfer from symbolic commons to corporate identity. Not so much censorship as semantic crowding out of older meanings when branded meanings are seen so commonly.

Why does TM elevate arbitrary marks? By necessity, not b/c of real conceptual strength. Descriptive & suggestive marks are depleted/overused. Competitors’ needs constrain protection. Result: Firms migrate towards protectable marks, not necessarily marks with high communicative value. Catachrestic marks require lots of advertising, burdening small businesses and startups; rewarding cultural extraction b/c they’re borrowed from outside the marketplace, meaningwise.

Conclusions? Downgrade arbitrary marks in strength hierarchy? Treat as presumptively weaker than fanciful? Not entitle them to broadest scope in likely confusion analysis? Cultural screen at registration to check for cultural appropriation? Require secondary meaning for full strength? Arbitrary fair use doctrine accommodating situational uses reflecting cultural, linguistic, or metaphorical associations?

It’s not so much that arbitrary marks are arbitrary, it’s that the Abercrombie spectrum as a whole is arbitrary. Fanciful marks echo familiar sounds; generic terms can shift meaning over time; the generic/descriptive/suggestive boundaries are porous. It’s a legal fiction rather than a natural fact.

Linford: radical interpretation would be: secondary meaning for everything. And more skeptical the closer you get to generic. Worry about PTO (and judges) as cultural interpreters. Does the addition of the cost justify the gain? If you think we’re overprotecting TMs, you could increase costs on litigants by requiring secondary meaning for everything.

Fromer: you’re conflating two things. (1) semantic connection b/t term used to signify source & a class of goods & services: apple/computers; (2) brand associations a business wants to develop to connect apple to computers—wisdom, Isaac Newton, etc. Think you’re right that arbitrary marks require more investment but can become stronger over time b/c of the arbitrariness.

RT: Tradeoff b/t initial difficulty learning and strength of association once learned: larger literature on information processing might be helpful. Attracted to the conceptual strength argument; already cases say that suggestive is weakly distinctive. But consider Jellybeans/Lollipops for roller skating rinks as an interesting example for you where the arbitrariness has the same conceptual relationship to the goods/services for both, and the confusion story is pretty plausible to me. Compare: Amazon/Mississippi. Maybe a situation where commercial strength decreases the likelihood of [some kinds of] confusion. Against conceptual strength? (Compare to Fromer’s Against Secondary Meaning.)

Truthmarks (Aman Gebru)                

Descriptively, TM owners misuse marks in ways inconsistent w/ TM’s policy goals. Analyzed truthfulness cases (72 opinions). There are 3 buckets: prohibited deception; tolerated ambiguity; incentivized dishonesty.

Misuse: masking marks; zombie marks; nonsense marks.

Masking marks: the connection b/t mark and product has changed but the consumer doesn’t know. Philip Morris became Altria to hide cigarette stink. J&J used Splenda for sweeteners but changed from natural to artificial. Intra-brand fraud (as opposed to inter-brand fraud that TM addresses).

Zombie TMs: abandoned marks resurrected by firms w/ no ties to the original producer, w/residual goodwill or notoriety. May create distrust of the system by consumers. Revived Enron using logo.

Nonsense: unpronounceable strings of letters/numbers; consumers are not the audience. But they’re easy to register.

Doctrinal gap b/t false advertising & TM law. Only descriptive or suggestive marks are presumed capable of carrying falsehoods, but you can create meaning over time w/arbitrary & fanciful marks and then change. Focus on literal deception leaves space for a license to cheat your own consumers. Reduces incentive to improve quality.

Propose truthfulness as organizing principle. Reimagining failure to function for nonsense marks; expanding abandonment doctrine where there is residual goodwill. Stronger duty of candor; expand standing to include consumers.

RT: For zombie TMs: Consumers seem pretty resistant to learning mistrust. Given realities of imperfect enforcement, how much should we worry about skepticism.

Why not just allow a false advertising claim when they switch the product characteristics? As for zombies: The plaintiff former owner has the wrong interests; maybe let consumers or current competitors claim.

Should the PTO presumption be reversed? No mark shall be refused unless …. Could be “a mark shall be registered when.”

Lemley: nonsense marks are different in kind—they are identifying source to algorithms and bots, not to humans—but there’s nothing not truthful/deceptive to humans about them.

Sari Mazzurco: deceptive as to what? Ordinarily: Falsely suggesting a quality—but zombie marks are appropriating an earlier mark’s goodwill, which seems different. Consider also white labeling as a practice—almost all cosmetics in the US are made by two companies; cosmetic companies are trademarks + customer lists. Dupes are often made by the same producer. Is the TM system obscuring actual information about source/manufacturer? Influencers who don’t control what they sponsor/endorse—a form of naked licensing.

Alex Roberts: why should we care about erosion of trust in the TM system? Specific deception is an issue, but that’s different.

Trademark Use, Failure to Function Doctrine, and Free Speech (Lisa Ramsey)         

Does JDI reject commercial use requirements/nominative fair use by rejecting any “First Amendment screen” when there’s a use as a mark? Commercial use and TM use requirements can protect speech; but also proposed a statutory defense for noncommercial use other than as a TM. Still need to figure out use as a mark. Statute says: used to identify and distinguish the goods from those of others/identify their source/manufacturer.

Is association enough for secondary meaning? 100% THAT BITCH may be associated with Lizzo, but is it distinguishing the source of goods from others in the marketplace? Association shouldn’t be enough—it should be distinctiveness for source of goods/ability to distinguish them from the goods of others. Information not related to the reputation of the TM owner should be a non-TM use: informational slogans (if you see something, say something); parody, satire, e.g., mashups; decorative uses. Consider goods/services in relation to putative mark as well as placement/likely placement. If someone seeks BLACK LIVES MATTER for T-shirts, we know they want to put that on the front and control others’ uses.

These principles can also be used in enforcement/infringement cases to assess TM use by defendants.

Q: would a ‘badge of allegiance’ for sports teams (Arsenal case in UK) count?

A: should we allow them to make additional $ by selling T-shirts—she would treat them differently—maybe give them narrow rights.

Dogan: what do you do about sponsorship or affiliation confusion?

Question mark (TM) (Lorelei Ritchie)

Core what of TM: source identification. How: consumer perception. Descriptive terms can acquire protection, but not generic terms. Blurry lines b/t categories. Booking.com even says that “ordinarily” a generic term can’t be protected. But also there are mixed uses: some people perceive it as generic while others perceive it as a mark. TMEP: examiner is told to refuse for genericness but there is actually no specific ground for generic refusals. Generic-ish.

Proposals: (1) PTO shouldn’t refuse on genericness grounds, only descriptiveness as a spectrum; (2) burden of proof; Fed Cir mostly doesn’t require clear & convincing for genericness and right now the standard is all over the place. Should be clear about whether it’s preponderance; thinks it should be clear & convincing if it’s an absolute bar b/c that’s a big deal. (3) If it’s an absolute bar, then “key aspect” genericness (generic adjective) should go away, because it’s too blurry. What’s the difference between immediately conveying information and “key aspect”?

Dogan: does competitive need play any role in your thinking? We think of genericism as: does this convey firm-specific info? But also: would TM inhibit others’ ability to tell people what they’re selling.

Ramsey: the benefit of genericism is that it protects free expression and fair competition to have a bright line rule to fight against abuse/C&Ds.

A: not that different from our common-law system.

Ramsey: burden of proof!

Linford: do we want to account for how consumers see things or do we care more about TM owners’ machinations/manipulations of evidence?

RT: if blurriness is fatal we can’t have a registration system. There is no system I know about that can make 700,000 individualized determinations/year with more consistency than the PTO does. So I’m not against clarity but not convinced that there are many clear lines to be drawn. Not sure people should be entitled to a registration unless there’s clear & convincing evidence, given the consequences for the presumption of validity—California Innovations as an example of how that thinking screws up the statute.

A: Preponderance is ok for relative refusals (descriptiveness, presumably confusion) but should think about whether all absolute refusals should be treated the same way. [I agree they should but I’d go with preponderance.]

Rachael Dickson: Examiners haven’t got the same level of knowledge for everything they’re asked to examine, which allows manipulation. “Dog walker” got registered for cigarettes even though that’s actually a well known term for a cigarette that you can smoke during the length of a dog’s walk.

Fair Use and First Amendment: The Art of Trademark Disobedience (Rachael Dickson)     

Artists release consumer products which deliberately infringe as a form of expression, serving both source identification for the new goods and commentary on the companies at issue, the values they profess, or consumer culture generally. A kind of civil disobedience: culture jamming relies on traditional artistic mediums, but her interest is in more standard products. MSCHF: “There’s no better way to start a conversation about consumer culture than by participating in consumer culture.” Stuart Semple and his Yves Klein Blue/Tiffany Blue/others.

Rogers test post-JDI doesn’t apply to use as a mark. Maybe these uses are ornamental, but they look mark-like. Still could be expressive, and the burden should be high on the TM owner to show a false statement is being made/a reasonable consumer is confused.

Ramsey: compare the Yes Men impersonating the Chamber of Commerce.

Q: if it’s civil disobedience should punishment be appropriate?

A: They’re making fun of the way the world is, not just the law, by using consumer products, so breaking the law is not exactly the point.

WIPIP Panel 4: Emerging Technologies

The European Accent of U.S. Digital Platform Speech (Brian Downing)

We are often told that self-governance by corporate platforms is better than government control, but his experience was that freedom of action wasn’t free. US gov’t defers to platforms, but they in turn defer to the EU. Thus, deregulation doesn’t promote freedom of action by platforms, who instead subordinate speech and security values. US is abdicating values it might want to inculcate into platforms.

Many things in EU regulation are good and should provide a US model—DSA rights of appeal are desperately needed. But codes of conduct etc. have no bargaining dynamic with US free speech principles. We should craft regulation to bargain with the EU vision. Our involvement in laws helps shape future regulation in ways that are better than our absence.

US approach, Moody v. Netchoice: few greater dangers to free expression than allowing gov’t to “change the speech of private actors in order to achieve its own conception of speech nirvana.” Corporate speech is protectable. Content moderation: we will have a light touch so we won’t break the internet.

EU: GDPR, DSA, DMA, AI Act—all implemented by many platforms globally. Even if you could segregate as a practical matter, you can’t build out a system like that just for Europe. You build it and implement it worldwide.

Also, technolibertarians have turned into compliance departments who just give a bottom line and they implement that globally.

Where the US stands back and doesn’t want to mess with US companies, what has actually happened is the DSA codes of conduct have removal policies that have a pseudo balance of privacy and speech, but the real way it works is that speech is subordinated to privacy or other interests. Companies are told they need to “voluntarily” agree.

If we want different rules, we have to bargain with this dynamic. We should have privacy regulation as a bargaining chip for alternatives to GDPR. You may hear “the EU is stepping back b/c they see their lack of competitiveness” but they are pretty modest; do not touch DMA or DSA. Just change some consent definitions for GDPR and timelines for AI Act, but not fundamentally changing balance of power. Changed definition of PII. Anonymization is helpful, but doesn’t cause a company that was setting its privacy standards based on the GDPR to ignore the right to be forgotten.

Q: what about economic dimension of Data Act? Applicable to internet of things, wider scope—does this affect platform economy?

A: lots of confusion about Internet of Things applying to mobile phone OSes. Platforms think that the definitions were broadened to future-proof them, but that means the rules don’t seem to match mobile OS. His guess: this will be private room meetings, nonenforcement agreements (rule says only imports of data are allowed, not exports; that will frustrate users of Android phones—do you really want that? Quiet nonenforcement agreement).

Right posture: enter regulatory game to influence it. AI: product liability approach w/safe harbors, not mandates to stifle user questions on sensitive topics.

Interoperability requirements threaten security and we need pressure on that. Maybe there should just be competition, not forced openness.

RT: in the abstract, very persuasive, but hard to agree when you see what the current US gov’t is doing: deliberately boosting right wing content outside the US. Also: bargaining requires a reliable partner, which we may not be capable of right now. Idea of passing federal legislation is a bit of a stretch.

Separately: current regime has differential effects on SMEs versus Meta, Apple and Alphabet (including differential requirements imposed by European regulators). [That is, the SMEs may not be building the worldwide systems that those big companies are.] Mismatch of understanding: The quiet nonenforcement agreement is understood as the operation of the rule of law in Europe but corruption in the US. That may make it hard to speak in the same register.

Bargaining chip implies that we’d want to continue to influence/control global rules. Compare mandating geofencing. (Blake Reid’s Jawbreaking and counterboning).

A: might be talking about a world that doesn’t exist any more. It is unsettling to confront regulators where quiet backrooms are the way things get done, and when there’s regulator turnover things can change fast. [My view is that this is correct but that Europeans would neither draft laws the way we do nor see compliance with law the way US courts (or administrators) would even if the law’s wording is the same.]

Q: what about the states? California might be able to regulate. Could be a reliable partner even! One difficulty is that there’s an attempt to stifle state regulations.

A: harder to operate on the corporate side where Illinois has one biometric law and California as another—harmonization is important. But there is a ton of action on the state side. Maybe we’d want these state actors as our representatives to the world—almost any actor negotiating would be better than the actors we have!

Venture Capital (Michael Burstein)  

VCs funded electric cars and mRNA vaccines, but recently VCs have concentrated investments in social media, crypto, and AI. Conventional wisdom is VCs pick and choose from promising pitches. It’s the ideas that drive the funding. We argue that’s exactly wrong: it’s the funding that drives ideas. VCs send signals to market about what they’ll fund, which induces entrepreneurs to found startups that will be funded.

VC preferences are shaped by social norms, need for power law returns, and short time horizons. Result: narrowing of innovation. We look at how VCs shape founder behavior—ethnographer’s dataset. Corporate law, contract law, and public policy could expand the possibilities for innovation.

2024: $215 billion from VCs, a little less than half of the pre-Trump science funding. So who makes investments in early stage companies with significant risk and when? Key features of the VC model: large equity stakes for founders, standard 10 year term of VC fund, 2/20 compensation structure. The goal is efficient allocation of capital w/in the funding realm.

But the outside perspective judges policies by innovation outcomes, not allocative efficiency. Here, the big problem of VC is clustering: $100 billion in AI, then $50 billion in healthcare—67% of VC funding, leaving 30 other industry categories like climate tech and hardware mostly unfunded. This carries through across demographic lines: female founders received 1% of funding, Black and Latinx got 1% and 1.5% of funding; 55% of funding was in California.

Innovation scholars shouldn’t treat VC as a black box: we look that entrepreneurs, the ones who decide what companies to found and what innovations to pursue. Entrepreneurs aren’t monolithic in preferences; partially motivated by finance but usually not the only or even the primary motivation for what the entrepreneurs want to do. Some entrepreneurs will trade off financial considerations for solving intellectually hard problems, or for doing good in the world, or something else. Preferences then interact w/market signals: from investors (VC sends signals about what will yield the highest returns 6-7 years post-funding, scalable with $ to increase likelihood of power law return); from product market (measure of success is positive unit economics and profitability); and from social world (divergence b/t private and social value of innovation).

Put preferences w/signals & get the marginal entrepreneur: the one who doesn’t eschew VC funding or just want money but has to decide where to invest innovative efforts.

VCs put a thumb on scale in pre- and post-funding environments. Often built around fads & bubbles; often very explicit in what they’re requesting. Repetitive & exhausting hype cycle.

Distorts investments: (1) misallocating resources, (2) distributive consequences. Wasteful duplication—similar to literature on patent racing. Pre-funding, perception of limited pool of capital induces overinvestment in these kinds of favored tech. Post-funding, VCs favor winner-take-all—you see wasteful investment in trying to capture consumers. VC returns may reflect anticompetitive behavior; unit economics diverges from ROI, and externalities are not fully internalized. This dynamic favors founders who resemble what VCs expect and can tailor their behavior to what VCs like, leaving out women, minorities, noncoastal and rural populations. Consumers are also left out—the tech is disproportionally aimed at the problems of the communities from which VC comes.

What can law do? Change content of VC signals: why is the standard term 10 years? Change the strength of the VC signals: modulate corporate law; promote countervailing signals/amplify other sources of funding.

The Innovation Paradox: How New Forms of Media Confound Copyright (Zachary Cooper)

The more innovation we have, the more © gets confused about dealing with new media. Use of Gen AI doesn’t reveal anything about creative relationship to work—it’s as helpful as saying “used software.” No means of auditing or evaluating. Authorship thresholds won’t work but that leads to problems of scale—too much content out there. We also have a problem of form: everyone can turn everything into everything else.

Copyright often does not recognize innovative new modes of creative expression, or allow innovation if built from other people’s works; innovation increasingly lowers costs of production, and innovation undermines fixedness—the notion that a work will stay itself.

New instruments since the late 70s have not been protected (synths). The sound of EDM for the next 50 years—but no one thought it was protected composition b/c it was just turning dials on a machine. We mined all the latent space in that composition—but the only thing that © protects is the melody. © is protecting the old part of Donna Summer’s I Feel Love, but not the innovative part. Meanwhile music services aren’t paying artists anything for anything they generate.

In 5 years no one will care if you used AI but it will be too late: we’ll have set up a surveillance apparatus that prevents you from creating unobserved.

"shipping protection fee" providing no extra protection was plausibly misleading drip pricing

DeMarco v. DNVB, Inc. (Thursday Boot Co.), No. 25-CV-3076 (GHW) (RFT), 2025 WL 4378637 (S.D.N.Y. Dec. 5, 2025) (R&R)

Thursday Boot sells shoes, apparel, handbags, and accessories on its website, which offers “free shipping and returns in the U. S.” according to a banner at the top of the webpage. Each product on the website is listed with an “Honest Pricing Guarantee,” promising the “Best Price offered year-round.” Upon checkout, however, a “Shipping Protection” fee of $2.98 was automatically added to the customer’s cart, with an option for the customer to deselect the Fee. Customers are told that if the Fee is not paid Thursday Boot “is not responsible for damaged, lost, or stolen items during shipping.” However, defendant ships its products via UPS, which will reimburse purchasers of lost or damaged packages. Defendant also has an Amazon storefront on which it sells its products and offers free shipping, without the Fee.

Plaintiffs alleged violations of NY’s GBL (along with common law contract/unjust enrichment claims which the magistrate recommended rejecting). Although the magistrate thought there was no standing for injunctive relief, the basic deception claim was plausible.

Whether the Honest Pricing Guarantee was a deceptive practice depends on whether the Fee was misleading, which it plausibly was. Defendant argued that there was no misleadingness because (1) the Fee was clearly disclosed on the checkout page “in the same size and font as the product price, together with an adjacent option to remove the charge”; (2) shipping protection is distinct from shipping, so that a charge for shipping protection did not negate Defendant’s promise of free shipping; and (3) the shipping protection bought by the Fee provided value to buyers by allowing them to recover from Defendant for lost or damaged packages, thereby relieving buyers “of the responsibility to pursue relief” for lost or damaged packages from the shipping companies.

But it was plausible the combination of the free shipping representation and the negative option to remove the Fee was misleading to reasonable consumers and that Defendant’s behavior was made more misleading by Defendant’s last-minute inclusion of the Fee, aka “drip pricing.” Plus, the statement that Defendant was “not responsible for damaged, lost, or stolen items during shipping” could plausibly lead “a consumer to believe that they will bear all risk of loss” if they did not pay the Fee, even though buyers were already entitled to such compensation.

Full disclosure occurs when a party “is provided with all the information necessary to understand [a] practice and its consequences.” Whether the disclosure provided plaintiffs with sufficient information to understand the significance of the Fee was a question of fact that couldn’t be assessed on a motion to dismiss. While a reasonable consumer would understand the difference between shipping and shipping protection, “the website provided insufficient information to allow reasonable consumers to understand the nature of the shipping protection secured by the Fee.” A reasonable consumer likely would be unaware that the carrier would, under ordinary contract principles, bear the risk of loss or damage during transit. The check-out statement that if a customer did not pay the Fee, defendant would not be “responsible for damaged, lost, or stolen items during shipping” was “technically accurate,” but the failure to disclose that the carrier was responsible for loss or damage during transit might “undermine [the] consumer’s ability to evaluate his or her market options and to make a free and intelligent choice.”

Also, even if a reasonable consumer would have understood that the shipping fee added defendant’s commitment to bear the risk of loss or damage, it wasn’t clear that they would know that the fee was optional.  Adding the fee to customers’ carts at the very end of the transaction “added to the confusion and could plausibly have misled reasonable consumers about whether the Fee was optional.” Articles cited by the defendant in support of its motion to dismiss, which state that offering shipping protection has become commonplace, “also opine that adding fees for shipping protection at the end of the transaction is misleading to the average consumer.”

WIPIP Panel 3: Deepfakes, Celebrities, and Movies

A Digital Right of Publicity for the AI World (Emma Perot)

Prehistory: ROP covers lookalikes, soundalikes, video game avatars (at least for realism).

Persona as training data. Theories of personality: users informed about use; many social media companies do not allow opt-in or opt-out; performers can be subject to exploitative terms. Unjust enrichment: in absence of compensation for training and licensing to third parties. Incentives undermined, though this won’t apply to the average social media user. We tend to favor art we think is made by humans. W/o proper protection we’ll undermine incentives.

Input stage: is consent obtained? Maybe, sort of, via terms of service, contracts with publishers, agreements made pre-AI.

Output stage: could be identifiable or unidentifiable. The latter isn’t really a problem for ROP. But the ability to create unidentifiable persona makes input approach important—persona has been used for the training. Risk of nefarious uses already addressed in many situations; but expressive uses could be covered which could interfere with realistic depictions, e.g. in biopics. If you’re conveying information about the person perhaps we want to allow that (as opposed to casting them in a role).

No FAKES: positives—exception for satire/parody, disclaimers not permitted. Negatives: doesn’t address training, uses to create composite figures, licenses last too long (10 years). SAG-AFTRA agreement: more positive b/c TV/theatrical uses they say: each capture and use of digital replica should be consented to and compensated.

Need clarity on how consent for input is sought and how outputs will be treated in expressive works. Avoid labor displacement.

Betsy Rosenblatt: Different interests from people who make a living from their persona v. someone who is more concerned w/privacy.

Lisa Ramsey: theories of persona is one framing, but what are the goals of the law is another. What are you trying to protect? Right to make $ from performing? Right to stay out of database?

[Persona is a bad fit for a consent-to-train framework because the details of a person’s life etc. are facts. You may be thinking about songs and movies, but the NYT wants to be able to license its news stories w/o being overridden by the subjectss. Moreover, persona is constructed with others. When I tell my life story, my husband’s life story is inherently implicated.

Incentives: if you are relying on the preference for human-made work, what you want is a disclosure regime; licensing by the person will lead to lots of deception.]

Transformative Celebrity (Rebecca Curtin)  

ROP claims might be implicated by methods users use—Zarya of the Dawn looks a lot like Zendaya, and that’s b/c the prompter used her name to produce a character who resembles Zendaya. Use of names in prompts alone, w/o reference to whether an infringing result is produced, has been raised by artists who alleged that allowing users to request art in the style of X was a violation of the ROP.

Transformative use was imported into ROP from ©, but © has recently devalued new meaning and message. Should ROP follow ©? Should © return to focus on new meaning, especially for use of persona? Does it make sense for © and ROP defenses to differ?

Transformativeness is not the worst approach of the possibilities in ROP.

Warhol’s commerciality test sounds a lot like the predominant use test in ROP cases (yuck).

Thinks Griner v. King was wrongly decided by 8^th Cir.—use of “success kid” meme was not fair use even used in political speech. Inherently expressive way of using image as cultural reference, but court reasons that controlling the commercial use of the template was the point of seeking © and thus not transformative—devalues what the politician was trying to say. Warhol is undervaluing new message & meaning, and expanding that approach to ROP would be devastating to the transformative power of celebrity itself.

Brian Frye [edited to correct attribution]: the speech is out there; it’s just a question of who gets paid/the rents.

A: chills speech by future potential speakers.

RT: experience w/state dilution law suggests courts are neither willing to use nor capable of using two different tests with the same name. Return to productive use, but this time for the ROP?

Trademark Law's Trouble with Titles (Stacey Dogan)         

What would have happened if Barbie, the movie, was made by a truly subversive entity instead of by Mattel? TM handles titles very badly in ways that are becoming more problematic after JDI. Alone in the Dark lawsuit—based on video game suing over title of movie Alone in the Dark, one of many films under the same name.  Several courts in the wake of JDI have concluded that titles may be source indicating, meaning that Ds have to go through the regular LOC standard, which is much less speech-protective. But these courts have gotten it wrong.

Titles and TMs do have some things in common. But differences in purpose function and impact on audiences versus impact on consumers; differences in consequences of extending legal rights to titles (speech impacts)—which should mean different legal rules. Reference to titology, literary theory of what titles mean.

Looks at different contexts: titles as TMs, recognized by early 20^th-c courts as basis for unfair competition claims, but rightly with a high standard requiring explicit misleadingness; Rogers and titles as alleged infringement; Dastar and its conception of TM’s relationship to expressive works (TMs identify source of physical object; titles are not TMs in this view, but indicate a relationship b/t author & expression); and then JDI and Kagan’s understanding of “use as an indication of source.” This should be understood narrowly to preclude the treatment of titles as TMs.

Goal: easy resolution of most cases. Presume titles are not source-indicating uses, which means that Rogers-like speech protection is appropriate. But Rogers needs an update: can’t later claim TM rights based on expressive uses. Some kind of estoppel, though implementation is tricky.

How to draw the line b/t mere use in title and other uses? Advertising of title/work should clearly be allowed, but what about merchandise? Advertising in connection w/merch?

Ramsey: would only apply rules against people who asserted TM rights by applying for registration, claiming in a pleading, or maybe using TM symbol—treat as an admission by the defendant. But what about Harry Potter and the ___? If there’s no inherent meaning before adopted, maybe allow TM, but something like Alone in the Dark already had meaning and thus shouldn’t ever be protectable.

A: two different forms of expressive use: one set of terms involves common meaning like Alone in the Dark; also important to be able to engage in nominative fair use-like titles like Barbie Girl.

Rosenblatt: how much do we need title exceptionalism to get to this place? Dastar: relationship b/t title and content is not a source relationship. We can understand that some titles are descriptive, generic, arbitrary and approach them that way. (I don’t think arbitrary titles are marks! Use as a mark is a separate requirement from placement on Abercrombie.) But she’d limit that to rights claims; whereas when titles are the source of alleged infringement we should treat that differently.

A: we have title exceptionalism on the protection side and should retain it b/c of the expressive cost of granting rights. Titles are creating more problems than characters—most of the Rogers character cases are easily resolved in favor of the defendant b/c courts have found that use w/in a work is more purely expressive.

FIRST: Archival Encounters That Set History in Motion (Claudy Op den Kamp)

Videographic presentation of history of first film © registration in US.