Reading list: Deception wins at the Federal Circuit

 "A doctrine that was meant to deter deception thus rewards its most sophisticated form: technically accurate fragments presented as universal facts." This student article shows how the Federal Circuit allowed two layers of deceptive advertising: advertising results from p-hacking, without even disclosing the subgroup to which the p-hacking purportedly applies.  

Porter A. Tynes, III, Truth That Lies: How Literal Falsity Lost the Consumer and How to Restore It, 33 J. INTELL. PROP. L. (2026)

From the introduction:

For centuries, courts have treated false advertising law as a safeguard against deception, ensuring that claims of efficacy rest on verifiable fact. ThermoLife unsettles that foundation. The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held that an advertisement is not literally false so long as it is true for someone—even if it misleads almost everyone else. In a single stroke, the court hollowed out the Lanham Act’s most potent protection by turning literal falsity into a loophole.

9th Circuit applies Dastar to bar false advertising liability based on "first to market" claims

Vericool World, LLC v. Igloo Products Corp., No. 24-192, 2026 WL 1239879, --- F.4th ---- (9^th Cir. May 6, 2026)

Judge Bumatay dissented from this decision extending Dastar to bar Lanham Act false advertising claims over who was “first” to market a biodegradable cooler. Given the citation to Bostock, this seems mostly like a fight about pretending that statutory interpretation is obvious rather than a matter of judgment.

Vericool alleged that Igloo violated the Lanham Act by wrongfully taking credit as the first to market a biodegradable cooler. The Lanham Act creates a cause of action against a defendant who “misrepresents the nature, characteristics, qualities, or geographic origin” of a good. Under Dastar, the “characteristic” must be an observable aspect of the “tangible product” rather than the “ideas or communications that ‘goods’ embody or contain.” “Because Vericool’s claim concerns the origin of an idea embodied in its coolers—rather than the characteristics of the product itself—we conclude it is not cognizable under the Lanham Act.” (What is “union made” under this reasoning? One could indeed go and observe nonunionized workers making a product—is that observable? I find the majority’s preclusion reasoning, detailed below, basically persuasive, but I’m not sure it can be cashed out as “observable aspect.”)

Vericool argued that, because of Igloo’s false advertising, it lost “the cachet that comes from producing a pioneering product” and could not capitalize on the same media attention and free advertising Igloo had. The complaint quoted media coverage referring to the Ohana cooler as “not the first of its species,” “another alternative to Styrofoam coolers,” and “much like the Igloo RECOOL biodegradable cooler.” Vericool also pleaded that “consumers . . . are more likely to purchase a product that is the ‘first’ of its kind rather than a secondary alternative.” During discovery, a Vericool representative testified that customers were likely to accuse Vericool of attempting to “knock off” Igloo’s Recool and that “third party entities indicated they were less interested in Vericool’s biodegradable coolers because Vericool was perceived as not being the innovator in the product category.”

The district court threw out the case because of Dastar.

On appeal, Igloo argued that Vericool lacked Article III standing, but it didn’t matter that current Vericool is a new entity; it was an assignee of the injuries of its predecessor in interest.

Dastar interpreted “the phrase ‘origin of goods’ in the Lanham Act in accordance with the Act’s common-law foundations (which were not designed to protect originality or creativity), and in light of the copyright and patent laws (which were).” Thus, “the most natural understanding of the ‘origin’ of ‘goods’” was “the producer of the tangible product sold in the marketplace,” not the “person or entity that originated the ideas or communications that ‘goods’ embody or contain.” Courts must avoid interpretations of the Lanham Act that extend “trademark and related protections into areas traditionally occupied by patent or copyright.”

The Ninth Circuit has already extended this logic to § 1125(a)(1)(B) false advertising. In Sybersound, the court held that “the nature, characteristics, and qualities” of a product “are more properly construed to mean characteristics of the good itself.” In particular, false claims that songs on karaoke records were “fully licensed” were not cognizable under the Lanham Act. The “characteristics of the good itself” must be observable about the product itself, “such as the original song and artist of the karaoke recording, and the quality of its audio and visual effects.” This avoids a copyright/advertising law clash and ensures that only copyright owners and exclusive licensees of copyright may enforce a copyright or a license.

The majority also looked to Baden Sports, Inc. v. Molten USA, Inc., in which the Federal Circuit held that a plaintiff could not bring a cause of action under § 1125(a)(1)(B) when a competitor advertised that it was the “innovator” of a technology that the plaintiff claimed it authored. “If ‘innovation’ or ‘newness’ was an attribute under the Lanham Act, litigants could find a loophole around Sybersound.”

This seems like a better statement of the rule than “observable,” and it brings in my favorite concept, materiality:

A misrepresentation about attributes embodied in a physical product is actionable under the Lanham Act if it misleads a consumer about the quality of a good itself or misrepresents the physical producer of a good in a manner that would be actionable under traditional claims for unfair competition. If, however, the misrepresentation regards “matters that are typically of no consequence to purchasers,” such as the source of the idea, design, or innovation embodied in the product, then plaintiffs must bring an intellectual property claim and cannot proceed under the Lanham Act.

“Misrepresenting the physical producer” seems like it would cover false union-made claims.

The dissent wanted to ignore Dastar “and instead be the first appellate court to adopt the broadest possible meaning of the text.” But “Dastar, Sybersound, and Baden Sports are not the one-off, fact-bound dispositions the dissent claims; each case examined the text and context to determine the extent to which the Lanham Act federally codifies common-law unfair competition claims while preserving the ‘carefully crafted bargain’ of intellectual property law.”

It didn’t make sense to assert that “the partial federal codification of common-law claims is necessarily limited in § 1125(a)(1)(A), but that Congress—in the same paragraph—intended the broadest possible codification of common-law claims in § 1125(a)(1)(B).” Instead, Dastar held that, “when determining whether a § 1125(a) cause of action incorporates common-law claims, we must be careful to avoid rendering limits on intellectual property claims ‘superfluous.’ That reasoning is not cause-of-action dependent—indeed, the Court cited subsection (a) without further specifying (1)(A).” This is preclusion reasoning.

And while the Court suggested in dicta that a plaintiff may have a cause of action under § 1125(a)(1)(B) if a defendant copies its video and advertises it as “quite different from” the original, that does not mean the subsection allows claims based on the ideas contained in the goods. The Court still contemplated observable qualities, as a viewer could watch the scenes and narration and observe that they were the same. And there is no way to distort the dicta to support a workaround to Dastar’s core holding that a misrepresentation about the author of a copyrighted work is not actionable under the Lanham Act.

Sybersound was also binding: it “held that plaintiffs cannot use § 1125(a)(1)(B) as a workaround for limits placed on copyright-infringement claims, such as copyright standing. But patent law also has limits, and allowing Vericool’s claim would allow it to collect damages for infringement on an idea that is not patentable.” Sybersound’s “characteristic of the good itself” test “requires proof of something observable by the consumer—‘such as the original song and artist of the karaoke recording, and the quality of its audio and visual effects’—to be cognizable under the Lanham Act.”

The dissent argued that this test will be difficult to apply, but it’s been a while since Dastar and Sybersound were decided, without much evidence of chaos. “If anything, the dissent’s crabbed reading of Sybersound is far more ‘difficult to administer,’ as it would require district courts to probe plaintiffs’ motives to ‘plead around’ restrictions in intellectual property law.” Rather—and here’s another, better statement of the test—courts should examine the defendant’s “objective statements to determine whether they relate to intellectual features of goods or to qualities of the products themselves.”

As a matter of statutory interpretation, too, adopting “something less than the broadest possible meaning of the text” is fine (citing Chevron USA Inc. v. Plaquemines Par., 2026 WL 1040461, at *6 (U.S. Apr. 17, 2026) (“But, generally in statutory interpretation, it is the ordinary, not literalist, meaning that is the better one.” (cleaned up))). Using “isolated dictionary definitions contributes little to finding the ordinary meaning of the terms of the Lanham Act. ‘The ordinary meaning is not merely a possible meaning,’ and the fact that we could stretch statutory terms further does not mean that we should.” That’s a key message of Dastar. “Ignoring context in textual interpretation can lead to contorted statutory interpretations. See, e.g., Bostock v. Clayton Cnty., 590 U.S. 644, 661–62 (2020).”

But where the dissent really foundered was on preclusion:

the dissent never grapples with the difficult question of which congressional enactment prevails when in conflict. “Congress does not hide elephants in mouseholes.” If Congress intended to undo detailed limitations on patent claims, it would have done so with more specificity than amorphous words such as “nature,” “characteristics,” and “qualities.”

What about the textual neighbors “geographic origin” and “services”?

The difference between a tangible geographic origin and an intellectual origin is a manageable distinction and the very distinction set forth in Dastar. And even though consumers may not be able to physically hold a service, a consumer may still observe qualities of a service. Neither term supports the dissent’s conclusion that Congress intended “nature,” “characteristics,” and “qualities” to include the ideas or designs embodied in goods or services.

The dissent also pointed to two examples of misrepresentations offered by the Restatement of Unfair Competition: misstatements as to whether a product is patented, and misstatements as to whether something is “the original.” Sure, perhaps false claims of being the “original” may also state a claim for reverse passing off under § 1125(a)(1)(A) by causing confusion as to the actual “producer of the tangible product sold in the marketplace.” As one district court explained, “it is plausible that such a claim to originality could sway a consumer . . . by intimating that these ‘original’ [products] are the ones the consumer remembers fondly from his childhood.” But that wasn’t argued here.

And the patent example was already dealt with by preclusion. (The majority doesn’t mention the false patent marking cause of action in the Patent Act, but that would bolster its argument.) “Here, because Congress chose to protect patents through a separate body of law, we doubt that this aspect of the common law is cognizable under the Lanham Act without a connection to the characteristics of the product itself.”

Crocs, Inc. v. Effervescent, Inc., 119 F.4th 1 (Fed. Cir. 2024), came out a different way because the claimant alleged that the “patented” misrepresentation conveyed a specific message that competitors could not offer the same materials. But Vericool waived any argument that the claimed misstatements related to any tangible characteristic or quality of the products.  Here, the claims were “fundamentally about the origin of an idea.”

Igloo’s claim that its product was the “first” biodegradable product on the market

is not inherently a claim about the tangible characteristics of the cooler itself. No observable quality of the coolers suggests whether they are the first to be sold in the market. A consumer cannot determine whether a good is the first to the market without reference to additional knowledge about the market as a whole. Thus, such a statement—without more—is a statement about the “idea, concept, or communication embodied in those goods.” And the mere date on which a seller finalized a design for a product or first marketed it is “typically of no consequence to purchasers” when deciding which product is their preferred choice.

Indeed, Vericool’s own argument was only that this harmed its reputation for innovation. “Unfair competition law protects consumers purchasing products, not the goodwill and positive publicity of competitors in the market.” The dissent’s argument that Igloo’s statements implied that Vericool’s product was a “knock-off” and thus inferior conflated different meanings of “quality.”

The dissent’s argument relies on the inference that a product derived from someone else’s idea is less desirable and thus of inferior value. From there, the dissent chains together the added inference that inferior value connotes an observable characteristic. But while both inferences could be true, neither is necessarily true.… Vericool has no evidence that Igloo’s statements suggested that the Ohana was made of different materials, performs worse, or is less biodegradable than the Recool.

That is, it would be a cognizable theory that consumers believed from Igloo’s messaging that Vericool’s products had physical differences that made them not biodegradable, since that would be about physical qualities. In Crocs, for example, the Federal Circuit emphasized that “the false claim that a product [was] patented [did] not stand alone,” but rather allegedly “misled current and potential customers to believe” that the product was “made of a material that is different than any other footwear.” But Vericool presented no evidence of this on summary judgment; all its evidence was about confusion about which cooler was first. This wasn’t just a new argument—it was a new theory of harm/deception that required different evidence than Vericool’s initial first-to-market claim.

Ultimately, “Vericool’s claim based on statements claiming to be the first to the market also impermissibly seeks to vindicate an economic interest that patent law alone protects.” The PTO rejected many of Vericool’s claims in its patent application. “If Congress had intended to protect the economic value of inventing the general concept of a biodegradable cooler, it would have done so ‘with much more specificity than the Lanham Act’s ambiguous use’ of the terms nature, characteristic, and quality.”

Judge Bumatay dissented, at length, with many dictionary definitions of “nature, characteristics, [or] qualities.” He concluded that when a product reached the market is a “distinguishing quality,” a product’s “traits,” “qualities,” or “properties” could include its “design concepts,” and the “quality” of a thing can refer to its observable or non-observable attributes.

The dissent noted, correctly, that the list of words has similar, overlapping meanings. The point, he thought, was to ensure a broad, self-reinforcing, “belt and suspenders” meaning. The neighboring terms also were relevant: a false claim about “geographic origin” “generally has nothing to do with a good’s tangible or observable features.” The dissent thought that “geographic origin” was similar to the “idea” or “design concept” that the majority excluded. (Seems like that could cut the other way, though—if “origin” alone means only physical origin per Dastar, and needs a modifier to do something else, then the other terms plausibly are also physical.)

But, the dissent continued, services are “often intangible.” “If a company lied and said that Albert Einstein invented its physics-tutoring service, that would be a ‘characteristic’ of the service—but not a tangible or observable one.” The dissent also claimed, without real citation of pre-Lanham Act cases, that “Section 43(a)(1)(B) creates a federal cause of action for common-law ‘false advertising,” defined as occurring when “a seller falsely advertises that his product has qualities which in fact it does not have, but which products of other sellers do in fact possess.” “Thus, the common law of false advertising applied broadly to all material misrepresentations—regardless of whether the misleading statement went to tangible or intangible features of a product.” The Restatement of Unfair Competition says that “a representation that only indirectly relates to product quality or that in some other manner relates to the desirability of the proposed transaction may also be material.” (Citation to something other than the Restatement needed; there really wasn’t a non-disparagement-based, common-law false advertising cause of action for competitors, which is why the Lanham Act proved so popular that 43(a) was explicitly split up in 1988 to recognize false advertising as a separate claim.)

Ultimately, § 43(a)(1)(B) should apply to a false claim that a biodegradable cooler is, as a historical fact, “the first of its kind.” “After all, purchasers may want to reward innovators in environmentally friendly production—so the identity of the first producer may be material.” (Citing Joseph P. Bauer, A Federal Law of Unfair Competition: What Should Be the Reach of Section 43(a) of the Lanham Act?, 31 UCLA L. Rev. 671, 743 (1984) (“[F]alse claims about the goods’ uniqueness . . . are often . . . important to the consumer, and have [a] likelihood of injuring both consumer and competitor[.]”.) [Well, it’s a citation, though not to empirical evidence.]

Dastar was about § 43(a)(1)(A), not § 43(a)(1)(B). But the latter isn’t just about likely confusion, a “traditional intellectual-property concern.” [Again, citation needed. The idea that trademarks—or, even more, unfair competition and the unregistered/unregistrable matter that was covered by § 43(a) when the Lanham Act was enacted—are part of “intellectual property” is a relatively modern one.] Section 43(a)(1)(B) is “more broadly” about “misrepresent[ations]”—as fits its false-advertising roots. (Oh, how I wish it were broader than likely confusion.)

Because Dastar was about the “federal cause of action for traditional trademark infringement of unregistered marks,” it didn’t cover false advertising. Indeed, in discussing the potential for false advertising claims, all Dastar required was a misleading claim that the product was “different” than the original in some way— “it didn’t limit those differences to only tangible or observable features.” “Section 43(a)(1)(B) is concerned with policing outright lies in advertising and commercial promotion—not confusion between intellectual properties.” [Note that the rhetoric of “outright lies” is inaccurate: Lanham Act false advertising includes both implied falsehoods and entirely unintended falsity. This tends to happen to everyone when trying to defend a distinction—to give nuance to one body of law is often to flatten out another one.]

Sybersound, too, “dealt with a specific problem—misusing a false-advertising claim to plead around the requirements of a copyright claim.” The dissent accepted that “[s]ome plaintiffs have attempted to avoid a Lanham Act § 43(a)(1)(A) trademark infringement and unfair competition allegation by asserting that the same facts establish a claim of false advertising under § 43 (a)(1)(B).” “The usual aim of this improper pleading is to avoid having to prove the validity of a trademark by claiming it is some new type of false advertising.” [From a false advertising perspective, this framing is very odd, given that it’s generally much harder to prove a false advertising claim with its extra materiality and commercial advertising requirements, plus the requirement of survey evidence for implicit falsehoods, whereas courts routinely find trademark infringement by implication without extrinsic evidence.]

In the dissent’s view, Sybersound was apparently only about this misstated infringement claim, even though the plaintiff contended that the false advertising was about whether defendant’s copies were legitimately licensed from the copyright owner. [The dissent also doesn’t seem super interested in distinguishing copyright from trademark.] Sybersound said that § 43(a)(1)(B) doesn’t cover “misrepresentations about copyright licensing status” because that would conflict with copyright law. [Does the dissent think that misrepresentations about patent licensing status are actionable as well?] Indeed, the case even suggested that the intangible origin of a product, such as who was the “original . . . artist” of a karaoke recording, was an actionable “characteristic.” “Instead, the original artist of a karaoke song is a characteristic like who was first to market a biodegradable cooler.” [This is playing with the meaning of “original”— “whose voice is recorded in this recording?” is a very different issue than “who was the first to sing this?”]

The patent conflict was narrow: Vericool wasn’t bringing a faux patent claim, but merely asserting that, “as a matter of historical fact, it was the first to manufacture the coolers.”

And the majority’s atextual “observable-characteristics only” test would be difficult to administer. A claim that a product is made of “patented” material could be actionable, or not.

Plus, Vericool could satisfy the “observable-characteristics only” test with its argument that Igloo’s advertising caused confusion that its cooler was a “knock off” of Igloo’s cooler. “Whether something is an imitation or copy of another thing seems potentially ‘observable’ to me. … And usually a ‘knock off’ is considered a cheaper version of the original—again, potentially a tangible or observable characteristic.” [I see most of the dissent’s points, but this one seems wrong, given the failure to develop an evidentiary record on this different theory of falsity & harm.]

claim that entity sells unapproved drugs does not misrepresent "origin, sponsorship, or approval" for Lanham Act purposes

Peptide Tech LLC v. Avidia Bank, 2026 WL 1506049, No. 25-13179-MJJ (D. Mass. May 28, 2026)

Plaintiff sells peptides; Avidia is a bank and acquiring bank for merchants who accept credit and debit card payments. Doe defendants allegedly reported Peptide Tech to Mastercard, leading Mastercard to place Peptide Tech on the Member Alert to Control High-Risk Merchants (“MATCH”) List. Plaintiff brought claims for breach of contract, tortious interference with business relationships, violation of Mass. Gen. Laws ch. 93A (a state false advertising provision), and violation of the Lanham Act. The court granted the motion to dismiss.

“To accept debit and credit card payments, merchants must obtain payment processing services through a payment processor and a member bank, also known as an acquirer. These payment processing services are contracted with payment card brands … [whose] rules govern participants in the payment processing system, including payment processors, acquirers, and merchants.” Avidia is an acquirer with whom Peptide Tech entered into a merchant processing agreement. Peptide Tech identified its business category as “Research Chemicals,” and alleged that it doesn’t sell peptides for human consumption, but to research labs, which is legal.

“MATCH is a Mastercard-maintained database that identifies merchants terminated by acquirers due to suspected high-risk behavior, such as fraud, excessive chargebacks, or regulatory violations.. Placement on MATCH effectively eliminates a business’s ability to accept credit card payments for its products.”

 

Avidia allegedly recommended, supported, or otherwise caused Peptide Tech to be placed on the MATCH List, causing significant monetary harm.

Breach of contract claims failed for want of terms plausibly breached; tortious interference failed for want of pleading actual malice.

The Ch. 93A claims failed as repackaged breach of contract claims; the agreement plainly said that Avidia could terminate the relationship in its “sole discretion,” and there were no facts pled that Avidia misled payment card entities; Peptide Tech merely speculated that Avidia incorrectly communicated to them that Peptide Tech’s products were unapproved.  

Lanham Act: Peptide Tech argued that Avidia violated § 1125(a)(1)(A)’s ban on false statements “likely to cause confusion, or to cause mistake, or to deceive as to the … origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person,” because it allegedly communicated that Peptide Tech was selling unapproved drugs.

But §43(a)(1)(A) is for trademarks, and Peptide Tech didn’t plausibly allege trademark confusion: “marketplace confusion about whether goods are affiliated with or approved by another person.” A false suggestion that a plaintiff’s products were “unapproved or illegitimate”  “does not allege confusion about the origin of Plaintiff’s products, affiliation with another entity, or sponsorship or approval by another person in the Lanham Act sense.”

§43(a)(1)(B) false advertising: No commercial advertising or promotion.

plaintiff delay affects irreparable harm and balance of equities where third parties rely on defendant

Pulling Guard Prods., LLC v. Lambert, No. 26-CV-2305 (PJS/LIB), 2026 WL 1481302 (D. Minn. May 27, 2026)

Plaintiff made a “strong showing” that defendants’ “Minnesota Monsters” name and branding infringe its “Duluth Harbor Monsters” mark, though it didn’t show likely success on its claims for false advertising, breach of contract, tortious interference with contract, tortious interference with prospective economic advantage, unjust enrichment, and violation of the Minnesota Deceptive Trade Practices Act.

I’m blogging this because the court relies on plaintiff’s delay to deny a preliminary injunction (even though the court doesn’t mention the statutory presumption of irreparable harm; other courts have reaffirmed that delay can also rebut that presumption). The alleged infringement had been going on for months—and was fully known to plaintiff—before it filed suit and sought a preliminary injunction. “[A]t this point, it appears that little additional harm will be caused by defendants’ continued infringement.”

The delay also had effects on the balance of equities:

[T]he potential harm of an injuction to defendants has escalated dramatically now that the “Minnesota Monsters” are nearly one-third of the way through their season. Additionally, numerous innocent third parties could be harmed—including concession workers, television broadcasters, players, and fans—if the Court were to order the “Minnesota Monsters” to change its name and marketing in the middle of the season.

a bot maybe accessed a former employer's trade secrets; larger trade secret/false advertising issues ensure employer's victory

Capconvert, LLC v. Brown, 2026 WL 1471880, No. 26-cv-02149-CRB (N.D. Cal. May 26, 2026)

Capconvert sued its former employee Brown primarily over alleged misappropriation of Capconvert’s trade secrets and confidential information for use in a competing business venture involving search engine optimization (SEO), generative engine optimization (GEO) (ugh), answer engine optimization (AEO) (double ugh), and paid ad management services. The court followed an earlier TRO by granting a preliminary injunction. I will focus only on the Lanham Act/California FAL claims, except to note that the record contains a document, apparently a prompt to an AI agent, stating “This is the most important rule you have. You violated it on February 26th, 2026, and it nearly destroyed Ben’s career,” purportedly intended to make it “abundantly clear to any agent that I was working with ... to not access any Capconvert ... file.” However, another bot allegedly “disputed” that any such access occurred. Where is the truth? It will likely take many, many expensive hours of lawyer billing time to identify. So if you’re looking for a litigated case to scare people about AI and trade secrets—it has arrived.

Brown’s competing service, Signyl claims to offer the same services as Capconvert. Brown’s LinkedIn page described him as “Managing Partner” of Capconvert, though that was never his role or title. It stated that he worked on Capconvert’s Rankily product, but he did not. The Signyl website states “200+ Brands managed $50M+ Ad spend optimized,” which cannot be true as Signyl had only existed for one month. Brown had no relevant experience in SEO prior to his time at Capconvert, and while there, only brought in one client. He did not manage 200+ Brands or optimize a “$500M+ Ad spend.” The Signyl website also appears to misrepresent Signyl’s performance metrics.

Brown  contended that “the metrics displayed on that site did not relate to Capconvert work” but were “derived from my work predating Capconvert” and that “any public statements I made about my experience were intended to refer to my own prior professional background and track record at Google.”

The court found many of the website claims “plainly false.”  “Signyl has no clients, let alone 200+ clients…. A banner that ‘runs across the front page of the Signyl.agency’ making claims about particular experience necessarily suggests that the experience is that of the company whose website it is. Those claims are false, at least as to Signyl.” Likewise, the claims were material: “Representations of experience across relevant services and with hundreds of brands would likely be material to prospective clients seeking those services.”

However, while the LinkedIn statements were false, Capconvert hadn’t yet demonstrated how it was likely to be injured as a result.

Irreparable harm as to the false advertising was presumed under the Lanham Act, and shown for trade secrets.  “Signyl has only been operational for a couple of months; that it has not yet poached any business from Capconvert using Capconvert’s trade secrets and confidential/proprietary information or by misrepresenting itself on its website does not mean that Signyl is not likely to cause harm going forward.” Likewise, on the balance of equities, the court commented: “Even if an injunction amounted to a shut down, just how much would a preliminary injunction shut down?”

Igloo must face biodegradability/recycled content/made in USA consumer claims

Lieber v. Igloo Products Corp., --- F.Supp.3d ----, 2026 WL 266301, No. 25-CV-488 (ARR) (LKE) (E.D.N.Y. Feb. 2, 2026)

I’ll get to the Igloo 9^th Circuit case eventually. This case is a putative consumer class action against Igloo, alleging that its claims that its coolers are “biodegradable,” made of “recycled content,” and “Made in the USA” are false and misleading under NY law.  

First: Plaintiffs alleged that “biodegradable” would lead reasonable consumers to believe that the product would completely degrade within a reasonable period of time after customary disposal, but instead it typically ends up in landfills after it is thrown out. The FTC’s Green Guides say:

It is deceptive to make an unqualified degradable claim for items entering the solid waste stream if the items do not completely decompose within one year after customary disposal. Unqualified degradable claims for items that are customarily disposed in landfills, incinerators, and recycling facilities are deceptive because these locations do not present conditions in which complete decomposition will occur within one year.

NY law provides a “complete defense” to liability under its false advertising provisions if the defendant’s “act or practice is ... subject to and complies with the rules and regulations of, and the statutes administered by, the federal trade commission or any other official department, division, commission or agency of the United States.” “A court may evaluate a challenged representation’s compliance with the FTC’s Green Guides to determine whether or not there is a complete defense to a claim under N.Y. G.B.L. §§ 349 and 350.”

Igloo argued that the claims should be dismissed because the Green Guides don’t create a private right of action, but of course plaintiffs were suing under NY law, not the Green Guides.

Igloo also argued that “the term ‘biodegradable’ does not mean ‘will biodegrade’ or ‘destined for inevitable biodegradation,’ ” and plaintiffs didn’t allege that the ReCool Product was inherently incapable of biodegrading or that consumers knew about the Green Guides.

The court found deception plausible. It was plausible that the products didn’t comply with the Green Guides; the complaint alleged that the products were customarily disposed of in landfills, and lacked the necessary qualifications for a biodegradability claim.

Second, Igloo made “recycled” claims about some products, but plaintiffs alleged that only some parts were made from recycled plastic, but not, e.g., foam insulation and interior linings, and cited the Green Guides again:

Marketers can make unqualified claims of recycled content if the entire product or package, excluding minor, incidental components, is made from recycled material. For items that are partially made of recycled material, the marketer should clearly and prominently qualify the claim to avoid deception about the amount or percentage, by weight, of recycled content.

This too was plausible at this stage. “While defendant cites numerous decisions where courts declined to read ‘exclusively’ into an advertising claim—such as whether the phrase ‘real cocoa’ on a product’s packaging implied that a product is made exclusively of real cocoa—it fails to consider that purchasing decisions are made within a specific context.”

Third, Igloo allegedly made Made in USA representations even though not all or virtually all aspects of the relevant products, including the raw materials, components, and manufacturing processes, originated from and occured within the United States. Plaintiffs alleged that specific materials were likely made outside the US, and full components such as hinges, handles, drain plugs, bottle openers, spigots, washers, and wheels were allegedly imported from manufacturers outside of the United States. The FTC defines “Made in the United States” and its synonyms to mean “any unqualified representation[ ], express or implied, that a product, and by extension, the raw materials used in its manufacture, are of U.S. origin.” Thus, federal regulations consider it a deceptive practice to label a product as “Made in the United States” or with substantially similar representations unless (1) the final assembly or processing of the product occurs in the United States, (2) all significant processing that goes in the product occurs in the United States, and (3) all or virtually all ingredients or components of the product are made and sourced in the United States.

Even though plaintiffs only alleged that certain materials were “likely” from outside the US, it was plausible that the claims were deceptive.

Breach of express warranty claims failed for want of sufficient pre-suit notice, and unjust enrichment claims were dismissed as duplicative.

America Unfinished: book announcement

America Unfinished

250 Years of Law and Governance

Edited by Alexandra Natapoff and Guy-Uriel E. Charles

From the publisher:

An engaging and timely essay collection on the challenges, risks, and opportunities of this historic moment in American law and governance.

1,000-word essays from the country’s leading legal scholars and experts.

It is the 250th anniversary of the Declaration of Independence, and the U.S. is grappling with foundational challenges to its laws, institutions of governance, and civic culture. Longstanding values of pluralism are being challenged. The nation is beset by deep political polarization, a fear that the economic order is no longer providing opportunities for all, and a technology revolution that may unsettle what it means to be uniquely human. America Unfinished brings together more than 50 legal scholars on the Harvard Law School faculty to analyze this historic moment in American law and governance.

Edited by Alexandra Natapoff and Guy-Uriel Charles, the book coheres around the dramatic experiment in American legal governance that began in 1776, still highly contested after 250 years. Some essays explore the modern expansion of executive power, including its recent and dramatic willingness to use violence, both domestically and internationally. Other essays examine longstanding divides between workers, consumers, and markets, and the hard questions they raise about democratic accountability in our market-driven economy. And finally, some contributors address the future of our knowledge and governance institutions under pressure from the disruptions caused by technological and informational revolution.

Dynamic and engaging, the collection does nothing less than advance the core conversations necessary for a thriving polity, both at this historic moment and for decades to come.

Contributors: Bill Alford, Sabrineh Ardalan, Yochai Benkler, Sharon Block, Nikolas Bowie, Maureen Brady, Scott Brewer, Stephen Breyer, Emily Broad Leib, Tomiko Brown-Nagin, Guy-Uriel E. Charles, John Coates, I. Glenn Cohen, Andrew Manuel Crespo, Christine Desan, Kristen E. Eichensehr, Benjamin Eidelson, Jared Ellias, Susan H. Farbstein, Noah Feldman, Jody Freeman, D. James Greiner, John Goldberg, Annette Gordon-Reed, Sheila Heen, Howell Jackson, Elizabeth Papp Kamali, Randall Kennedy, Michael Klarman, Adriaan Lanni, Eloise Lawrence, Richard Lazarus, Jill Lepore, Lawrence Lessig, Kenneth W. Mack, Bruce H. Mann, Martha Minow, Daniel Nagin, Alexandra Natapoff, Charles Nesson, Gerald L. Neuman, Ruth L. Okediji, Mariana Pargendler, Intisar A. Rabb, Richard M. Re, Daphna Renan, Mark J. Roe, Benjamin Sachs, Stephen E. Sachs, Larry Schwartztol, Joseph William Singer, Carol Steiker, Nicholas Stephanopoulos, Kristen A. Stilt, Ronald Sullivan, Cass R. Sunstein, Philip Torrey, Rebecca Tushnet, Dehlia Umunna, Rachel A. Viscomi, Laura Weinrib, Alex Whiting, David Wilkins, and Jonathan Zittrain.

“A thoughtful, insightful, and informed collection of essays addressing some of the most urgent issues facing our nation today.  A valuable contribution to understanding America at a critical moment.” 

—Bryan Stevenson, Founder and Executive Director of the Equal Justice Initiative; author of Just Mercy

 

“This thought-provoking collection of 62 short essays — some of them odd, some provocative, some insightful, and some even beautiful — is a remarkable gift to the nation on its 250th birthday.” 

--Michael W. McConnell, Richard & Frances Mallery Professor, Stanford Law School, Director, Stanford Constitutional Law Center, Senior Fellow, Hoover Institution

 

 “A must-read collection. These essays show myriad ways that American law has secured, betrayed, and threatened American liberty as the Declaration of Independence turns 250. They indict and inspire—at once dark, practical, brilliant, and deeply moving.” 

         --Reva Siegel, Nicholas deB. Katzenbach Professor, Yale Law School

  

“An astonishingly wide array of reflections on the condition of America today. An irreplaceable book.”

 --William Baude, Harry Kalven, Jr. Professor of Law, University of Chicago Law School  

  

"A timely and provocative collection of essays from some of the nation's most thoughtful and prolific scholars, America Unfinished is a crucial step toward a more perfect union.” 

--Melissa Murray, Frederick I. and Grace Stokes Professor of Law, New York University

competitor lacks standing under Cal. law because it didn't rely on alleged misrepresentations; its customers did

Kachuck Enters. v. Mission Produce, Inc., --- F.Supp.3d ----, 2026 WL 216475, No. 2:25-cv-01523-AH-JCx (C.D. Cal. Jan. 22, 2026)

This was a putative class action about alleged misrepresentations made by distributors and suppliers of Mexican-grown avocados that their avocados are sustainably and responsibly sourced. Plaintiffs, California avocado farmers, alleged losses from defendants’ touting of “unsustainably grown Mexican avocados as ‘sustainable’ to consumers.”

Despite representations about water conservation, biodiversity, and soil health, defendants allegedly source their avocados from Mexican orchards installed on lands recently deforested without the proper permits from Mexican authorities. “Sourcing avocados from deforested land exacerbates ongoing water scarcity in Mexico, contributes to climate change, and leads to habitat and biodiversity loss.” Plaintiffs cited various surveys showing that “significant segments” of U.S. consumers prioritize sustainability and more transparency from food producers and retailers throughout the entire food supply chain. Another survey “found that more than half ... of consumers indicated they are willing to spend more money on products that are deemed sustainable or environmentally friendly.”

Plaintiffs brought the usual California statutory claims. The court found no standing under the FAL and the “fraudulent” prong of the UCL because plaintiffs didn’t allege their own reliance on the false claims; rather, they alleged that they were harmed by consumers’ reliance on the allegedly false claims. This reasoning seems dumb—these laws were intended to protect competitors as well as consumers—and the court noted an increasing minority of federal district courts have rejected it. It’s probably time for the 9^th Circuit to certify a question, though I don’t have much doubt that the California Supreme Court will clarify that consumer reliance is required, but not competitor reliance.

As for unfair competition/UCL unfairness, the court applied the “tethering” test, which applies in actions “by a competitor alleging anticompetitive practices.” A finding of unfairness must be “tethered to some legislatively declared policy or proof of some actual or threatened impact on competition”: “conduct that threatens an incipient violation of an antitrust law, or violates the policy or spirit of one of those laws ..., or otherwise significantly threatens or harms competition.”

The test was not satisfied. Although plaintiffs argued in briefing that “Defendants’ influx of cheaply priced and unsustainably—and possibly illegally—sourced avocados distorts the market,” while plaintiffs must comply with strict sustainability requirements, while the complaint focused only on defendants’ acts of “offering for sale and selling deceptively labeled Mexican avocados” and “deceptively marketing products.”

Regardless, that theory wasn’t enough. Plaintiffs argued that defendants’ sourcing practices are exploitative because they are “possible only by entities with sufficient size and power to dominate operations in foreign countries with weaker environmental regulations” and they “exploit residents of a foreign country and contribute to the wholesale destruction of forests.” Thus, “Defendants leverage their size and reach to flood the market with avocados, boxing out competitors.” But these were “conclusory assertions,” and didn’t explain what part of antitrust law was implicated.  Nothing in the FTC Act specifically “precludes a business from sourcing its products in a lower-cost country where environmental laws or other safeguards may be less stringent than in the United States,” and sourcing products abroad is not an FTC Act violation “simply because regulatory conditions in those countries make the cost of production lower.” Plus, injury to competitors isn’t injury to competition. [That argument rings particularly hollow where the alleged distortions operate on whole countries’ worth of businesses.]

despite some skepticism, court mostly allows adtech vendor's disparagement claims against competitor to proceed

Double Verify Holdings, Inc. v. Adalytics Research, LLC, No. 25-1535-TDC, 2026 WL 1133411 (D. Md. Apr. 27, 2026)

DoubleVerify is in the business of “helping brands, agencies, and publishers verify that their digital advertising investments are delivered as intended.” Its customers advertise online and thus seek to ensure maximum viewership by real potential consumers. “Online ads are typically placed on websites through a high-speed, auction-like process.” The auctioneer, a “demand-side platform,” collects “bids” from advertisers; this is the “pre-bid” stage. If an advertiser’s bid is accepted and its ad is displayed, or “served,” to the webpage visitor, the advertiser will be billed for the “impression.”

Online advertisers retain DoubleVerify to avoid having their ads served to bots rather than to humans, and to avoid paying for such impressions if they do occur. DoubleVerify offers two solutions to help customers avoid paying for views resulting from bot activity, aka invalid traffic (IVT): it claims that its pre-bid service successfully filters out 99 percent of GIVT impressions at the pre-bid stage, but it also offers a post-serve service that (1) identifies and removes views resulting from standard bot IVT (GIVT) from the counts of billable views and (2) notifies customers about views resulting from malicious IVT so that they may then seek reimbursement from the publishers. Users can use the pre-bid service, the post-serve service, or both.

Adalytics is an “ ‘ad-tech’ vendor” that “sells an ad transparency service that competes with DoubleVerify” and allegedly carried out a disparagement campaign. Its report quoted DoubleVerify’s claim that it “offers the most comprehensive and accurate pre-bid avoidance targeting available in the market” but didn’t mention DoubleVerify’s post-serve services.

The Report claimed to be the “largest analysis of declared bot traffic in the context of digital advertising.” Relevant claims: (1) “Many publishers which appear to employ the IAS and DoubleVerify publisher optimization tools on their pages were observed serving ads to bots, including to declared bots operating out of known data center IP addresses.” (2) “Hundreds of major brands whose ads’ source code include[s] … code from DoubleVerify appear to have had their ads served to bots in data centers.” (3) Advertisers “whose ads appear to be mediated by DoubleVerify’s Scibids AI technology” were served “to declared bots operating out of known data center IP addresses or to URLScan[’s] bots.”

It concluded that “[i]nterpreting the results of this observational study requires nuance and caution,” and that “[o]ne should not assume that because a given ad tech vendor or vendors transacted a given ad to a bot that those vendors are somehow responsible or ‘at fault’ for the ad being served to a bot.” The Report also cautioned that “[r]eaders should be discerning and careful not to conflate distinct sets of observations or draw inferences about causality, intent, quantitative impact, magnitude, or provenance,” and that it “makes no assertions about” these issues. And it said that it “does not make any recommendations to media buyers with regards to whether or not to transact with specific ad vendors or with specific publishers,” but advised that advertisers “may benefit from undertaking a closer review of their digital advertising.”

DoubleVerify argued that, based on Adalytics’s “willful blindness to post-serve detection and filtration,” the Report “falsely and misleadingly portrays DoubleVerify’s web advertisement verification and fraud protection services as ineffective, including by stating or clearly implying that DoubleVerify’s customers are regularly billed for GIVT impressions.” In addition, references to DoubleVerify in the source code on webpages from which ads were served to bots could have occurred in relation to DoubleVerify customers who did not use its pre-bid services. DoubleVerify alleged that, for all of the ad views, or impressions, cited in the Report that were ostensibly connected to DoubleVerify and that it was able to identify in its records, it confirmed that it had actually detected such impressions at the post-serve stage and either removed them from customers’ billable counts or flagged them for reimbursement.

DoubleVerify alleged additional false or misleading statements or material omissions, including using 115 screenshots of advertisements presented in the Report as having been served by DoubleVerify customers where at least 62 had no apparent connection to DoubleVerify.

DoubleVerify alleged reputational and financial harm from dissemination of these claims, including a WSJ article titled “Efforts to Weed Out Fake Users for Online Advertisers Fall Short,” which stated that DoubleVerify “regularly miss[es] nonhuman traffic.” DoubleVerify’s stock price fell, and it allegedly had to expend employee time and resources to counter the Report. It therefore sued for false advertising under the Lanham Act as well as defamation, injurious falsehood, tortious interference with business relations, and unfair competition.

Was this a “commercial advertisement or promotion”? “Although the Report reads more like an analysis of other products and related technology than a communication aimed at selling Adalytics’s own goods or services, DoubleVerify asserts that Adalytics publishes research of this kind because it ‘uses its blog posts and articles to promote its own platform’ and supports that claim by pointing to a February 2025 statement on Adalytics’s website that it ‘release[s] thought leadership on systemic issues affecting brands and their media investments ... to ... attract new clientele.’” And it alleged an economic motivation for publishing: to win new business from customers of DoubleVerify.

Although the Report didn’t promote a specific product, that wasn’t dispositive of whether this was commercial speech. Nor was whether this was a traditional “advertisement.” At this stage, Adalytics’ direct competition and commercial motivation was enough: “the Report could potentially constitute commercial speech where its focus was the dissemination of the results of an analysis critical of a competitor’s product or service.” And allegations about harm to DoubleVerify’s stock price and “inbound calls from its customers regarding the effectiveness of DoubleVerify’s services” adequately alleged that the Report was “sufficiently disseminated to the relevant purchasing public to constitute advertising or promotion within that industry.”

Adalytics claimed that the challenged statements were all protected opinions on scientific and technical matters. The court disagreed (reaching the same result on defamation).

Defamation: most of the challenged statements weren’t alleged to be literally false. For example, the complaint conceded that DoubleVerify’s pre-bid services do not actually prevent all ads from being delivered to bots when it acknowledged that those pre-bid services filter out only “99% of unwanted GIVT impressions.” But defamation by implication was possible. Under governing Maryland law, if “the expressed facts are literally true,” a plaintiff pursuing a defamation-by-implication theory “must make an especially rigorous showing” and may prevail only if the challenged language “affirmatively suggest[s] that the author intends or endorses the inference.”

The court found it significant that the Report stated that “impression level log file data and financial invoices suggested that advertisers were billed by ad tech vendors for ad impressions served to declared bots operating out of known data center server farms.” This was fairly implied to relate to DoubleVerify. Also, the Report plausibly misled when it claimed to be able to identify whether a given brand had been charged for bot avoidance services, even when these impressions could have been served by DoubleVerify customers that do not have pre-bid solutions enabled. The court was a bit skeptical—DoubleVerify didn’t allege that any material number of its customers place online ads without enabling DoubleVerify’s pre-bid solutions—but the case was in an early stage.

Assuming, without deciding, that DoubleVerify had to plead an endorsement of the defamatory implications even though DoubleVerify wasn’t a public official, it was plausible that Adalytics, which “claimed expertise in advertising technology,” would understand that “DoubleVerify’s customers, in accordance with industry standards, would not be charged for pre-bid impressions served to bots once DoubleVerify’s post-serve processes were run.” Also, DoubleVerify’s “pre-emptive article,” published two months before the Report, put Adalytics on notice. And Adalytics allegedly illustrated its intent to disseminate defamatory information because it sent a draft version of the Report to certain media outlets but never requested any comment from DoubleVerify. These allegations were sufficient if not “overly compelling.”

The disclaimer wasn’t sufficient because it didn’t specifically disclaim the allegedly defamatory implication.

Nor was the Report protected opinion. “[A]lthough Adalytics used some technical methods in the Report, it was published on the company’s general website and was not a peer-reviewed scientific or technical journal article such as those at issue in cases cited by Adalytics on this point.”Even assuming that DoubleVerify was a limited-purpose public figure, it alleged sufficient facts for actual malice, noted above.

Injurious falsehood claims also survived.  Expenses incurred when countering the publication of the Report were sufficient to allege special damage. Common-law unfair competition also survived, but tortious interference claims failed because Double Verify didn’t “identify a possible future relationship which is likely to occur, absent the interference, with specificity.”

9th Circuit reverses dismissal where plaintiff plausibly alleges that an ingredient is non-natural flavoring

Trammell v. KLN Enterprises, Inc., No. 24-6097 (9th Cir. May 15, 2026)

Perfect summary:

The defendant company in this case represented to consumers that its berry snacks product contained no artificial flavors. The plaintiff bought the product believing the representation to be true. It turned out, however, that the product contained an artificial flavor. Laboratory testing revealed that the product’s flavoring was not naturally occurring but made from an artificial petroleum substrate. At least this is what the plaintiff alleged (albeit with more detail) in his complaint. The district court concluded, however, that the plaintiff failed to state a claim and dismissed the complaint with prejudice. We disagree and reverse.

Wiley Wallaby Very Berry Licorice says on the front, “Natural Strawberry & Raspberry Flavored Licorice,” and “Naturally Flavored,” while the back label states, “Free of . . . Artificial Colors & Flavors.”

Trammell sued for violation of the CLRA, unjust enrichment, and breach of express warranty. Although the product represents that it is free of artificial colors and flavors, it allegedly contains an artificial flavor, malic acid. Natural malic acid, derived from natural fruit sources, is commonly known as “L malic acid,” while artificial malic acid, derived from a petroleum substrate and other synthetic components, is commonly referred to as “DL malic acid.”

Trammell alleged that the product was tested in a laboratory and that the testing results “establishe[d] that the malic acid used in these Products is DL malic acid, and not L malic acid.” Allegedly, the test used the “industry standard” method for testing for the “D isomer” of malic acid, which is “not present in any amount in” natural malic acid and which would indicate “the use of artificial DL malic acid” in the food or beverage tested.

The district court thought that wasn’t enough to plausibly allege that the malic acid was artificial, and that a reasonable consumer wouldn’t be misled because “Naturally Flavored” and “Natural Strawberry & Raspberry Flavored Licorice” were “not unambiguously deceptive”: “a reasonable consumer would not interpret the front label as unambiguously representing that [the Product] does not contain artificial ingredients.” The back label statement “Free of . . . Artificial Colors & Flavors” was not deceptive because the back label “discloses both natural and artificial ingredients in plain text.” “[N]owhere on the front or back label does it state that the product is ‘all natural,’ ‘100% natural,’ or ‘free of artificial ingredients,’” so “nothing about this product—a brightly colored, shelf-stable licorice candy—would lead a reasonable consumer to conclude that [the Product] is free of artificial ingredients when the product labels make no affirmative representations saying as such.”

This was error. The complaint satisfied Rule 9(b). It gave notice to the defendant and provided the court with “some assurance” that his theory of liability “has a basis in fact.” Trammell alleged the specific laboratory that performed the testing; he provided a date of the testing; he explained the qualifications of the laboratory (“a reputable independent food testing and analysis laboratory that has conducted testing for the food and beverage industry since 1984”); and he discussed the laboratory’s “industry standard” methodology for detecting artificial malic acid by testing for the presence of the “D isomer” of malic acid, which is “not present in any amount” in natural malic acid. That was specific enough, and more specific than the allegations in cases on which the district court relied.

As for the merits, “Trammell plausibly pleaded that a reasonable consumer is likely to be deceived by a product that claims to be free of artificial flavors when that claim is (allegedly) not true.” Even if “Natural Strawberry & Raspberry Flavored Licorice” and “Naturally Flavored” wasn’t false or misleading, the back label makes a specific claim about being “Free of . . . Artificial Colors & Flavors,” Trammell has plausibly pleaded that was false or misleading.

Nor, contrary to the district court’s reasoning, did the back label actually disclose both natural and artificial ingredients:

The ingredients list on the back label does not disclose, on its face, which of the ingredients are artificial. Indeed, despite claiming that artificial ingredients are plainly disclosed, neither the district court nor Defendant identifies which ingredients are artificial. Some ingredients, like “malic acid,” may come in two forms—natural or artificial. But the list does not say which it is. A reasonable consumer, not being a chemist, is not in a position to make that assessment when buying the Product. What a reasonable consumer can understand is the Product’s representation that there are no artificial flavors. When that clear representation is placed next to an ingredients list—a list that does not make apparent (1) which ingredients are flavors and (2) which of those ingredients are artificial—a reasonable consumer could plausibly be (mis)led into believing that the Product does not contain artificial flavors. If anything, the ingredients list here—which does include an ingredient called “natural flavor”—reinforces the Product’s free-of-artificial-flavors statement.

True, the product never claimed to be “‘all natural,’ ‘100% natural,’ or ‘free of artificial ingredients,’” but Trammell’s claim wasn’t that those things were false, but rather that the product was not free of artificial flavors. The fact that the product is “a brightly colored, shelf-stable licorice candy” “may go to the artificiality of the coloring and preservative; they do not necessarily bear on the artificiality of the flavors.”

Defendant also argued that the FDA considers “malic acid” a mere “flavor enhancer,” not a “flavoring agent.” “But whatever category malic acid falls under in the FDA’s regulatory scheme, the question is what a reasonable consumer expects, not what a regulatory expert in the food-and-beverage industry knows. And here, Trammell has plausibly alleged that a reasonable consumer expects the Product to be free of artificial flavors and that it would be misleading to that consumer if the Product contained an artificial petroleum substrate as a flavoring—whether as a flavor itself or as a flavor enhancement.”

Reminder: Penn/NYU/Harvard Trademark and Unfair Competition Scholarship Roundtable 2026: submit by June 1

Penn/NYU/Harvard Trademark and Unfair Competition Scholarship Roundtable 2026

The Trademark and Unfair Competition Scholarship Roundtable co-hosted by Harvard, NYU, and the University of Pennsylvania will take place this year at NYU. Now in its fifth year, the Roundtable is designed to be a forum for the discussion of current trademark, unfair competition, and right of publicity scholarship, covering a range of methodologies, topics, and perspectives. Five to six papers will be chosen for discussion over the course of the Roundtable, with each paper allocated an hour for discussion and assigned a commentator.

The Roundtable will be held on Friday, October 16, 2026. If there is a critical mass of papers, we may also extend the Roundtable through Saturday morning, October 17. Participation at the Roundtable will be limited and invitation-only and we expect all participants to have read the papers in advance. We will ask participants to rely if possible on research accounts to cover travel and accommodation, but if that is not possible we will have funds to cover costs.

We invite submissions from academics working on any aspect of trademark, false advertising, marketing, right of publicity, or related areas of the law. Priority will be given to those who can attend the entire event and a dinner the night of Friday, October 16. Submissions must be of full drafts in Microsoft word format. The deadline for submission is June 1, 2026. Decisions on participation will be made by June 15, 2026.

Submissions should be made by means of this Google form<https://urldefense.proofpoint.com/v2/url?u=https-3A__docs.google.com_forms_d_e_1FAIpQLSfpHCiFmcHZ6SCKp4oWYC1TDTVXC8MNxWlaw2XpMc4IF3GtHQ_viewform-3Fusp-3Dpublish-2Deditor&d=DwMGaQ&c=slrrB7dE8n7gBJbeO0g-IQ&r=JCtF1L1KFZQA400a-MfN1LbbUwey4sno6RJztdDSMVk&m=frYEnTCmkzL5dabxDGK2I-SaTfGMF9qSkTH-tqc6v8_eRDuLE2XZ1o1PydGPHvx0&s=PUCAH7B4foFMqAuRCNa6K1oA1S63rzSVKgCgIrUKF8I&e=>. If you have any questions, please contact Barton Beebe at barton.beebe@nyu.edu<mailto:barton.beebe@nyu.edu>.

mix-and-match ad campaign actionable but "instant whitening" claims were mere puffery

Ledesma v. Hismile, Inc., 2026 WL 1146742, No. 24-cv-03626-KAW (N.D. Cal. Apr. 28, 2026)

Previously. Here, the plaintiffs provide enough allegations about the challenged teeth-whitening ad campaign to satisfy the court as to Rule 9 in the context of algorithmically generated ads, but still lose on puffery grounds. In essence, defendants allegedly exaggerated the teeth-whitening capabilities of their products through various means, such as unnaturally bright lighting and models who already have very white teeth, fake reviews, fake customer videos, claims of clinical proof, and claims of “color correction technology: purple and yellow are complementary colors opposite to each other on the color wheel, so purple ‘cancels out yellow undertones’ to reveal white teeth instantly.”

Plaintiffs alleged that there were thousands of ads posted on defendants’ social media accounts using the same core advertising methods, and that many advertisements “reus[e] the exact same clips in a different order, or with different actors reading similar scripts and acting out similar scenarios.” They brought California and NY claims.

Defendants argued that plaintiffs failed to identify the specific advertisements that they saw. But “California courts have recognized an exception to the requirement that a plaintiff identify the specific advertisement they relied upon ‘where a claim of fraud is based upon a long-term advertising campaign, which may seek to persuade by cumulative impact, not by a particular representation on a particular date.’ ”

The exception was satisfied here, where plaintiffs alleged that the ad campaign began more than ten years ago and saturates social media user feeds with videos, many of which reuse the same clips in different orders or with different actors reading similar scripts or acting out similar scenarios, all touting “the same false core message: that Hismile’s Products deliver ‘instant teeth whitening’ results.” Plaintiffs also sufficiently alleged their own individual exposure to this advertising campaign, including when and/or how long they saw the advertisements, what social media platforms they saw the advertisements on, more specific examples of the types of advertisements they saw, and the effect of those advertisements on Plaintiffs’ perception of the product -- namely, that the products “would produce an instant whitening effect.” That sufficed under Rule 9(b) to identify the who (Defendants), what (the advertising campaign and the types of advertisements viewed by Plaintiffs), when (the length of the advertising campaign and approximately when Plaintiffs were exposed to it), where (the social media platforms Plaintiffs viewed the ads on), and how (the allegedly false claim spread by the advertising campaign that Defendants’ products “instantly” whiten teeth).

Defendants argued that plaintiffs should have identified specific ads because they were still “readily accessible” on defendants’ social media. “But this argument only highlights the difficulty of identifying the specific advertisement; as Plaintiff points out, Defendant Hismile’s TikTok account posts at a rate of 15 or more videos a day, which results in over 1,000 videos in the span of 67 days. …To require that a plaintiff comb through hundreds to thousands of similar videos advertisements (assuming the viewed advertisement is still available) imposes a potentially insurmountable burden.” The court wouldn’t insulate high-volume social media advertising from scrutiny.

However, plaintiffs didn’t sufficiently identify the allegedly false/misleading influencers and customer reviews upon which they relied.

However, the case still had to be dismissed because “instant” whitening was puffery. (What about the clinical proof claim, above?) “Instant” wasn’t a quantifiable statement, but a general, subjective claim. Nor could plaintiffs use the duration of ads/demos during ads to show that defendants gave a definition to “instant.” That wasn’t a “binary and precise” criterion. “At what point in time would ‘instant’ no longer be an accurate description?” After all, “many things are advertised as ‘instant’ -- instant noodles, instant oatmeal, instant film, instant stain remover -- that are not literally instant but can take several minutes even if they are significantly faster than their non-instant counterparts.”

Costco's "free shipping" claims plausibly deceptive if online price is raised to account for shipping

Zaimi v. Costco Wholesale Corp., 2026 WL 1145798, No. 2:25-cv-01076-JHC (W.D. Wash. Apr. 28, 2026)

The court refused to dismiss statutory and common-law claims related to price differences between items that Costco sells online and in-store: online, Costco charges more for big-ticket items like couches to cover shipping, but advertises “free shipping.”  For example, one couch is available for $2,099.99 when bought in a physical Costco store but costs $2,399.99 when purchased online, and at checkout, “Shipping & Handling” is listed as “$0.00.” Within the online listing, in light grey font, Costco says that “Delivery, setup and packing removal [are] included,” and that “Items may be available in your local warehouse, prices may vary.” Also, there’s a webpage that says “Costco.com prices take into account shipping and handling fees not applicable to warehouse purchases,” but plaintiff alleged that “she was not presented with, and did not read, the fine print on Defendant’s customer service webpage admitting that those representations were false.” She brought claims under the Washington Consumer Protection Act (CPA) and California’s FAL, UCL, and CLRA, along with claims for breach of contract, breach of warranty, quasi-contract/unjust enrichment, and negligent and intentional misrepresentation, which the court declined to dismiss. I won’t discuss many of the details.

Costco argued that it disclosed the price differences and shipping costs. Online, the listing states that “[d]elivery, setup, and packaging removal included” in the stated price, and elsewhere on the website, it discloses that items are cheaper if bought in-store. Thus, believing that one would pay the same for the couch online as in the warehouse and pay nothing to have it delivered was patently unreasonable.

Zaimi rejoined that the checkout page statement, “Shipping & Handling $0.00,” induces reasonable consumers into believing they are paying $0.00 for shipping, and that general disclaimers (that items are available at a lower price in its warehouses) do not “negate the clear message that ‘Shipping & Handling $0.00’ conveys to reasonable consumers.” The court found no previous case to be entirely on point, but, at the motion to dismiss stage, this theory was plausible. The online listing didn’t state that the prices will be lower in-store: It states that the “prices may vary.” And plaintiff plausibly alleged that consumers “expect free shipping,” given the ubiquity of online shopping, even for large purchases like furniture.  

As for injury under Washington consumer protection law, it was enough to allege that she “would not have made the online purchase if she had known that she was paying for shipping or that Defendant charged more for the product online.”

slack fill claims proceed because protein powder is harder to understand than cookies

Cody v. Gainful Health Inc., 2026 WL 1428888, No. EDCV 25-01373-KK-SPx (C.D. Cal. May 19, 2026)

Gainful sells protein powder nutritional supplement products; plaintiff alleged unlawful slack fill. Cody bought a “28 Servings” package that “included two pouches or bags,” each weighing 14.8 ounces and “contain[ing] 14 servings per container,” and 28 “Flavor Boost” packets. Each pouch was “opaque” and did “not allow the customer to fully view its contents.” The nutrition label on the back of each pouch indicated a serving size of “1 scoop (30 g).” She saw the image online, which “depicted a totally opaque Product container that did not allow Plaintiff ... to see the fill level within such container.” The image also showed the “Flavor Boost” packets, “which indicated the far greater size of the Product’s container by comparison.” The Amazon product listing disclosed 28 servings, weight of 30 ounces, and package dimensions of 10.47 by 9.92 by 4.76 inches. But it did “not disclose any ... disclaimer such as a reference to a fill line or other caveat disclosing that the Product’s container was not packaged to be substantially full of protein powder.”

The court found the claims sufficiently pled under the relevant California statutes and common-law fraud. Cody sufficiently alleged an affirmative misrepresentation by using an opaque and “oversized” container, “which implied ... that the container had more protein powder than it actually contained,” and failure to disclose the non-functional slack fill in violation of California law.

“Because a consumer viewing the Product listing on Defendant’s online storefront has no ‘reasonable opportunity prior to purchase to shake or otherwise manipulate’ the Product to determine whether the Product’s packaging ‘is filled to the brim,’ they “may reasonably rely on the size of the packaging and believe that it accurately reflects the amount [they are] purchasing.’” Here, the packaging as depicted on the online storefront conceals that the “actual product only occupies approximately 60 [percent] of the exterior space represented by the Product’s packaging container.”

What about the quantity disclosures that did exist? First, it was unclear whether the listing included the back label, making any information on that label “irrelevant to determining whether a reasonable consumer is likely to be deceived.” Listing dimensions, weight, and number of servings “do[ ] not necessarily provide the reasonable consumer a meaningful metric for how much powder is in the container,” as a reasonable consumer is “not necessarily aware” of how a product’s weight and number of servings “correlate[ ] to the product’s size.”

Even if Cody saw the back label, deception was still plausible. Gainful cited several cases finding “no reasonable consumer would be plausibly deceived” where a package “provide[s] a consumer with a ‘rough estimate’ of the amount of final product that can be made from its contents.” But each of those cases “involved products that were discrete, countable goods, the number of which were disclosed on the label.” The instructions on the back label did not indicate how much protein powder a consumer should mix with 8 oz of milk or plant-based milk or blend with 8 oz of the consumer’s “favorite beverage.” Nor did the instructions indicate how much “Flavor Boost” a consumer should mix with milk, blend into a smoothie, or add into a baked good. While the back label suggested a consumer could “[a]dd a scoop” of the Product to their “favorite baked good recipe,” it didn’t specify the type or amount of baked goods to which a scoop of the Product should be added. Without that, a “scoop” of protein powder “is not an intrinsically meaningful metric of quantity,” even when “the consumer can calculate the approximate weight of each scoop.” As another court said: “A label that states a cannister contains 20 scoops of protein powder communicates materially less information to a consumer than a label stating that a cannister contains 20 cookies.”

She also sufficiently alleged that the slack fill was nonfunctional. It sufficed to allege that (1) “[t]here is no risk of the powder breaking or sustaining damage if there was less empty space in the Product’s container,” (2) “the machines used for enclosing the contents of the package have the capacity to add more content to the containers used to enclose the contents of the Product,” and “[a]t most, a simple recalibration of the machines would be required,” (3) “any settling” of the Product “occurs immediately at the point of fill” because of “the Product’s density, shape, and composition,” (4) the Product’s packaging “contains no instructions to consumers that they should mix together the Product’s whey protein powder with any Flavor Boost within the Product’s pouch container,” (5) “[t]he package is intended to be discarded immediately after the Product is consumed” and is not a “durable commemorative package” or “promotional package,” and (6) “Defendant can easily increase the quantity of the Product in each package (or, alternatively, decrease the size of the packages) significantly.” These plausibly alleged that none of the safe harbor provisions in California’s slack fill law applied.

contract, 230, and lack of specificity defeat "chat scam" claims against OnlyFans

N.Z. v. Fenix Int’l Ltd., 2026 WL 1425183, No. 8:24-cv-01655-FWS-SSC (C.D. Cal. May 19, 2026)

Plaintiffs sued OnlyFans (Fenix) and other entities who manage OnlyFans models based on allegations that they concealed the fact that plaintiffs weren’t authentically chatting with OnlyFans models, despite the centrality of the promise of authentic personal interaction to OnlyFans. One of OnlyFans’ “Core Values” is the following: “Giving creators control to own and monetize their content and to foster authentic relationships with their followers and fanbase.” Also, OnlyFans urges Fans to subscribe to specific Creators using the following language: “SUBSCRIBE AND GET THESE BENEFITS: Full access to this user’s content [/] Direct message with this user [/] Cancel your subscription at any time.”

The agency defendants allegedly “sell their services to OnlyFans Creators with promises that they can increase a Creator’s revenue exponentially—without the Creator ever having to actually do what OnlyFans promises: ‘directly connect’ with Fans.” They allegedly “contract with ‘Chatters’ to conduct most, if not all, of the communications between the Creators and the Fans. Without the Fans’ knowledge, the Chatters impersonate the Creators when direct messaging with Fans.” “Agencies even provide Chatters with actual ‘scripts’ similar to those used by telemarketers and call center employees, which give Chatters a specific workflow to follow in order to maximize the amount of money extracted from any given Fan.”

In recent years, agencies have allegedly developed specialized tools to facilitate the use of a single OnlyFans account by a team of Chatters. Further alleged: “OnlyFans is either aware of, or intentionally ignorant to, the use of CRM software on its platform—not least because its use violates OnlyFans’ Terms of Service—but chooses to do nothing to prevent the use of this software because of the increased revenues that CRM software facilitates.” And: “OnlyFans knew, and should have known, that its Creators were using Chatters to engage with Fans— including based on the revenue being generated by those Creators; the number of direct messages with Fans; the number of different login sessions to a given Creator’s account, often from many different locations and IP addresses; and the number of Fan complaints (which OnlyFans ignored).” As a result, they alleged, “the ‘Chatter Scams’ involve massive breaches of confidentiality and privacy violations in which intimate communications and private and/or personal information about Fans—including photos and videos—are distributed and/or accessible to numerous unauthorized parties.”

Plaintiffs sought to assert various claims against OnlyFans and the agencies, including RICO, VPPA, breach of contract, fraud, and California UCL/FAL claims.

§ 230: The VPPA and RICO claims against OnlyFans were barred because they sought to hold OnlyFans liable solely for facilitating, or failing to moderate, communications through the OnlyFans platform. (The other RICO claims failed because they were RICO claims.)

However, the breach of contract claim depended on claims of breach of  a contractual promise that OnlyFans “will use reasonable care and skill in providing OnlyFans” by collecting “data sufficient to identify Chatter-operated accounts—including multiple simultaneous logins from disparate geographic locations—and failed to act on this information.” That wasn’t seeking to hold OnlyFans liable solely for facilitating communications but rather to require it to ensure the users are operating OnlyFans properly and that OnlyFans acts on the simultaneous logins. (Eric Goldman will hate that!)

And, to the extent that misrepresentation claims were based on OnlyFans’ own representations that users can “ ‘direct message’ ..., chat ‘1 on 1’ ..., and build ‘genuine’ and ‘authentic’ connections” with Creators, those weren’t barred. The claims wouldn’t require OnlyFans to monitor third-party communications to avoid liability. (But the breach of contract claim would!) Anyway, although “content moderation [may be] one possible solution” for OnlyFans to fulfill its alleged duties, “the underlying duty being invoked by the Plaintiffs … is the promise” or representation itself.

VPPA: The VPPA provides that “[a] video tape service provider who knowingly discloses, to any person, personally identifiable information concerning any consumer of such provider shall be liable to the aggrieved person.” The Ninth Circuit has adopted the ordinary person standard to determine what constitutes PII, holding that “personally identifiable information means only that information that would readily permit an ordinary person to identify a specific individual’s video-watching behavior.” Under the TOS, plaintiffs agreed and acknowledged that their “[c]ontent may be viewed by individuals that recognise [their] identity” and that OnlyFans is “not in any way ... responsible” if Plaintiffs “are identified from [their] Content.” And plaintiffs failed to sufficiently allege OnlyFans’ knowledge.

However, they sufficiently pled that the agency defendants knowingly disclosed PII: they alleged that they shared personal information in chats with Creators, including their full legal name and photos of their face, and that the Chatter Scams function by “creating a communication history viewable by Chatters” which consists of “intimate knowledge of the Fan’s personal information, conversation history, and preferences,” and most importantly, “the specific content that they requested and/or viewed.” The agency defendants allegedly disclosed PII from Fans to Chatters by sharing login information or via CRM software.

Under the VPPA, “A video tape service provider may disclose personally identifiable information concerning any consumer ... to any person if the disclosure is incident to the ordinary course of business of the video tape service provider.” At this stage, that exclusion didn’t require dismissal.

Breach of contract: the statement “ ‘Direct message with this user [Creator]’ ” wasn’t part of the TOS, which contained an integration clause stating that users have “[n]o implied licenses or other rights are granted to [them] in relation to any part of OnlyFans, save as expressly set out in the Terms of Service” and that the TOS “form the entire agreement between [Fenix International] and [the user] regarding [the user’s] access to and use of OnlyFans,” and “govern [Plaintiffs’] use of OnlyFans.”

Failure to provide the platform with reasonable care and skill: It wasn’t enough to allege that OnlyFans allowed management agencies to use Chatters to impersonate Creators because this theory of liability imposed a monitoring obligation on Fenix Defendants. Nor was merely designing and providing tools for OnlyFans users sufficient to allege a breach; plaintiffs didn’t allege how tools such as Fan spending analytics and “inter-shift notes features” enable, or were specifically designed for, the Chatter Scam.

Implied covenant of good faith and fair dealing: Failed because plaintiffs sought to impose duties beyond those incorporated in the specific terms of the alleged contract.

Also, fans were not third-party beneficiaries of the Creator TOS, which required Creators to be individuals and safeguard their accounts given its express language saying there weren’t any third-party beneficiaries.

Fraud and deceit: Also failed against OnlyFans. OnlyFans made explicit disclosures about the use of third parties, its inability to control how Fan content is used, and the materials provided to Fans.

UCL/FAL: Not sufficiently alleged against agency defendants because plaintiffs didn’t allege the specific representations at issue.