Deadly automatic litterbox might be falsely advertised as "safe"

Gomez v. PetPivot, Inc., 2026 WL 507708, No. 25-cv-5622 (LJL) (S.D.N.Y. Feb. 24, 2026)

“Safe” is the kind of word that is general enough that it might be puffery, but courts think that safety is important enough that they sometimes consider it falsifiable. Here, defendant’s self-cleaning litterbox product gruesomely killed plaintiffs’ cat after they received the litterbox as a Christmas gift. (I will not give you the details but they were awful, and it was difficult to remove the cat’s body.) It was “advertised as remaining partially open at all times, with no complete enclosure that could entrap a pet.” On the PetPivot website, Amazon.com, and promotional materials, PetPivot marketed the Autoscooper as “smart,” “safe,” and “fully automated” and equipped with multiple “safety protection devices,” including that the system would automatically stop operating when a cat was inside the chamber. “The Amazon listing for the PetPivot assured consumers that the device can operate safely without supervision.”

Although individual defendants from PetPivot were dismissed for lack of personal jurisdiction, the court allowed NY GBL false advertising claims to proceed. GBL Sections 349 and 350 require proof of causation but not “proof of justifiable reliance.” “Reliance is the causal link between an alleged deceptive practice and a consumer’s decision to transact business with the defendant, whereas causation refers to the link between an alleged deceptive practice and an actual injury sustained by a consumer as a result of such practice.” Thus, causation can be shown by evidence either that the plaintiff would not have entered into the transaction or would have taken precautionary measures with the product had they known the truth.

Here, plaintiffs didn’t claim they bought the product in reliance on defendants’ representations, but rather that they relied on those representations when accepting and using the product in the home. That sufficed: they alleged a “connection between the misrepresentation and ... harm from, or failure, of, the product.” Also, applying Rule 8, they adequately identified the misrepresentations at issue.

Can the death of a cat qualify for negligent infliction of emotional distress where neither plaintiff was threatened with physical harm? “Bystander” claims for NIED in New York are limited to “immediate family,” but the courts have declined to define the outer boundaries of that phrase.  New York courts have allowed a grandmother to pursue a claim for bystander recovery following the tragic death of her grandchild, relying on the “legislative recognition of the changing nature of society’s understanding of family and the special relationship between grandparents and grandchildren.” By contrast, the relationship between aunts and uncles and their nieces and nephews didn’t qualify. “[T]he inquiry is objective; it asks not whether the grandmother and her grandchild had an exceptionally close bond, but whether New York law has evolved to recognize grandparents as a ‘discrete, limited class of persons that enjoys a special status under modern New York family law.’” 

A lower NY court also found that a pet dog could be classified as “immediate family.” New York Domestic Relations Law (“DRL”) requires a “best interest” framework for determining the custody of pets, similar to the framework for children, in recognition “that ‘for many families, pets are the equivalent of children and must be granted more consideration by courts to ensure that they will be properly cared for after a divorce.’ ” The court also considered societal norms regarding pets in hotel rooms and on planes, and concluded that “considering the various accommodations made for companion animals in general, along with the deep and affectionate bond Plaintiffs shared with their dog, it stands to reason that companion animals ... could also be recognized, as a matter of common sense, as immediate family.” However, it limited the rule to situations in which “the pet was leashed to the plaintiff at the time the negligent act occurred and the plaintiff herself was exposed to danger.” Thus, this case did not support extending NIED to the death of a cat outside the presence of, and danger to, her person. Her exposure to danger “did not go beyond witnessing the mechanical movement of the machine and unplugging it from the wall.”

For the remaining claims, “New York courts treat pets as personal property and consequently do not permit damages for emotional distress or loss of companionship.” But punitive damages might be available for strict products liability and GBL violations under appropriate circumstances.  

Amicus in support of cert in Lanham Act intent/damages case

 Truth in Advertising, Barton Beebe, Mark Lemley, Alexandra Roberts and I just filed a brief arguing that the Supreme Court should clarify the role of intent in Lanham Act cases.

Does "Dead Weeds in 1 Day" mean the entire weed will die, or just the visible part?

Scotts Co. v. Procter & Gamble Co., 2026 WL 482655, No. 2:24-cv-4199 (S.D. Ohio Feb. 20, 2026)

Previously, the court rejected Scotts’ request for a preliminary injunction of the trade dress of P&G’s Spruce brand of weed killer products, finding that it was not likely to be confused with Scotts’ Miracle-Gro. Scotts also makes Roundup and Ortho, relevant to the false advertising claims addressed here. The court dismissed one part of the claim but allowed the rest to survive.

Scotts challenged four different P&G statements (combined with certain visuals).

Dead weeds in 1 day

First, “Dead Weeds in 1 Day” and its accompanying visuals.  Scotts alleged that this was “literally false” because Spruce weed killer will not kill the entire weed within one day. Spruce is a “minimum risk product” as defined by the Environmental Protection Agency, and “[t]o date, all minimum risk products work by making contact only with the exposed portions of the plant and none directly affects the roots of the plant.” Thus, while “[w]ith regular application at certain dosages over time, a minimum risk product may eventually exhaust the roots’ storage of nutrients by repeatedly removing its leaves,” it will not kill the entire weed within one day.

Statement 2 uses the same visuals and has the same alleged problem: “Spruce works differently by dehydrating the weed down to the roots for dead weeds in just 1 day.”

visible results in 1 hour

Statement 3 promises “FAST Visible Results Within 1 Hour” or “visible results in 1 hour,” accompanied by before and after visual depictions. Scotts alleged that these “after-application images do not accurately portray typical results” of Spruce weed killer’s effects after only one hour.

Spruce works differently image

Statement 4 is titled “Spruce Works DIFFERENTLY.” It also says “WEEDS DEHYDRATE TO DEATH,” “1 HR,” and that “Without water, weeds dehydrate and die fast, showing visible results in 1 hour,” and was allegedly misleading for the same reasons.

P&G argued that Rule 9(b) should apply because false advertising “sounds in fraud.” Although this argument routinely works in consumer protection cases (because courts don’t like them), it fails here, as it sometimes does in Lanham Act false advertising cases. (Never in regular trademark cases, as far as I can recall.)

As P&G conceded, “[n]o Circuit has yet ruled on whether Rule 9(b)’s pleading standard generally applies to Lanham Act false advertising claims.” P&G’s theory of the law is that “if an element of any claim ‘requires an allegation of duplicity,’ it ‘implicates Rule 9(b)’s purpose’ and, therefore, Rule 9(b)’s heightened pleading standard applies.” And, because Scotts alleged intentional deception, the claim sounded in fraud.

But, as the court noted, “Lanham Act false advertising claims do not have a scienter element, so it is hard to see how they would require an allegation of duplicity.” The Sixth Circuit has applied the Rule 9(b) pleading requirements to some causes of action missing an intent requirement on par with the intent required for fraud—for example, to innocent misrepresentation. “But typically, courts do so when a ‘unified course of fraudulent content’ forms the basis of those non-fraud claims—especially if pleaded alongside fraud.” This is designed to prevent evasion of Rule 9(b).

Here, though, Scotts’ false advertising claim was based on the allegedly false and misleading nature of the statements themselves, not on the allegation that P&G is “willfully ... intending to deceive consumers.” “That is, if the statements are false, liability could attach even absent intent. So there is no indication that Scotts’ actual claim is fraud, with the false advertising claim only pled to circumvent Rule 9(b)’s strictures.”

More generally, “Lanham Act false advertising claims, while also based on ‘false’ statements, seem different in kind than traditional fraud claims.” Rule 9(b) is designed to ensure defendants have sufficient notice to respond. “But allegedly false or misleading advertisements typically run over an extended period of time, making it ‘unreasonable and contrary to the Sixth Circuit’s liberal construction of Rule 9(b) to require Plaintiff[s] to identify the exact day, hour or place of every advertisement’ that caused them harm.” Scotts clearly identified the statements it challenged, providing P&G all of the notice needed for it to respond. (It would also be possible to decide that this satisfied 9(b), as some cases have done.)

In addition, Lanham Act claims differ because Scotts was not alleging that it itself was defrauded, but that its customers are. “[G]iven that Scotts itself was not the defrauded entity, some of the who, what, when, where, and why questions that form the typical grist for Rule 9(b) may turn on information that Scotts itself does not have—information that instead rests only with the allegedly defrauded customers.”

Turning to the merits, Scotts plausibly alleged that statements 2-4 were false or misleading, but not the literal falsity of statement 1.

Recall that, on Scotts’ theory, Spruce weed killer does not directly affect the weed’s roots, so it does not (indeed cannot) kill the entire weed within one day (as the roots are still alive). P&G pointed out that the visuals do not depict the subterranean portion of the plant, and argued that “a ‘dead weed’ refers to a plant evidencing visible necrosis as featured in the accompanying image.” A statement “cannot be literally false if it reasonably conveys multiple meanings,” and that was the case here. “While consumers might plausibly take ‘dead weed’ to mean that the entire plant is dead, and will not grow back, consumers could also plausibly consider a weed evidencing visible necrosis (i.e., the visible green part is now brown and dead) to be a ‘dead weed.’”

Scotts did plausibly plead that Statement 1 was misleading. Statement 2 could also cross the line to literal falsity by claiming to dehydrate the weed “down to the roots for dead weeds in just 1 day.”

This is not ambiguous. The obvious meaning of this statement is that Spruce works—apparently in contrast to other weed killers—by dehydrating the whole plant, including the roots. It is not plausible that reasonable consumers would take the phrase “down to the roots” to mean just the above-ground portion of the weed. “Down to the [whatever thing]” conveys finality and the exhaustion of that thing. If coffee is good “down to the last drop,” one expects that the last drop will be good, as well. And if an event is planned “down to the last detail,” that means that the last detail is accounted for, too. True, sometimes phrases using this structure can mean something like “everything is gone except the thing.” For example, if a house is burned “down to the ground,” that does not suggest that the ground itself has burned. But even then, “down to [something]” means that the entirety of the thing is exhausted. The house burning “down to the ground” means that everything that can burn has; no part remains. Either way, weeds dehydrated “down to the roots” conveys that the roots, too, are dehydrated. Accordingly, there are not multiple reasonable interpretations of Statement 2 and Scotts has sufficiently alleged that it is literally false and misleading.

Statements 3 & 4 were also both plausibly false and misleading. “Scotts is alleging that weeds treated with Spruce weed killer will not have the visible results in one hour that the images depict. Or in other words, if you spray weeds with Spruce and wait one hour, the weeds do not in fact look like the pictures. Whether these images are actually inaccurate, and if the images and statements together are actually misleading consumers, are issues the Court will address later.”

(c) licensor's claims about competitor's allegedly worse licenses were opinion, not falsifiable fact

Tresóna Multimedia, LLC v. Pre-Cleared Ltd. D/B/A ClicknClear, 2026 WL 480858, No. 25-cv-6202 (GBD) (S.D.N.Y. Feb. 19, 2026)

Tresóna, a music copyright licensing entity, sued competitor ClicknClear for NY state and federal false advertising. The court dismissed the claim.

Since 2009, Tresóna has allegedly been issuing music licenses, on behalf of music rightsholders, to a “niche market” of “scholastic, community, and professional organizations.” Its main clients “include vocal ensembles, marching bands, color guards, show choirs, and other similar performing arts groups.” Its licenses cover certain musical works and sound recordings, including for “print, synchronization, dramatic performance, and remixing.”

ClicknClear entered the U.S. market in or about 2016 and later attempted to move into the “niche market” that Tresóna operates in – issuing licenses for musical works and sound recordings to scholastic, community, and professional organizations. It offers “licenses to various performance sports in which teams perform alongside recorded music, including artistic swimming, cheerleading, color guard, dance, dressage, figure skating, fitness, gymnastics, indoor skydiving, jump rope, and band/vocal ensembles.”

ClicknClear’s website informs consumers that “[t]here is often misleading information about what rights are required for ensembles to make an arrangement of music to accompany your routine.” ClicknClear states that “the rights that are needed to use a song in your performance” include the right to 1) “[p]ractise alone;” 2) “[s]et choreography to the song(s);” 3) “make copies of the arrangement for personal (practise) use; and 4) “[p]erform the routine in public with music: practise and competition.” ClicknClear states that “ClicknClear offer[s] all of these rights with our standard license.”

ClicknClear further purports to offer “legal services,” on its website, including “legal advice for owners and users of intellectual property rights, copyright and related rights.” And it offers a “License Verification System” (“LVS”) feature on their website that purports to evaluate and verify third party licenses, including Tresóna’s licenses. Users select the events at which the user is performing or competing, upload a sound recording of the sound, and upload proof of licensing documentation. The LVS returns one of three possible outcomes for the user; “green” for licensed, “yellow” for unverified, and “red” for unlicensed. The LVS only returns an automatic “green” result if the license is from ClicknClear, while any license issued by third parties will return a “yellow” result. ClicknClear has stated that when consumers receive an “unlicensed” or “unverified” result via the LVS, it causes them to “panic.”

In a prominent Facebook group for marching band arrangers, an individual defendant suggested (and then retracted after Tresóna’s C&D) that ClicknClear is able to offer better licenses at a lower price than Tresóna because Tresóna does not use a “pre-cleared model.” In a presentation given to potential consumers, ClicknClear suggested that its licenses are “stronger” than those offered by Tresóna as they cover “all” of the rights necessary, while suggesting that “Tresóna does not offer a full license but rather only a certificate.”

First, the challenge to ClicknClear’s statements about what rights are necessary: Tresóna argues that the statements were both literally and impliedly false because these are “illusory” rights that consumers do not need in all situations. The court found that these were non-actionable opinions about the law. “As both sides agree, the necessity of these rights involve unclear and contested areas of copyright law. Indeed, ClicknClear and Tresóna devote most of their briefing to arguing whether or not each subset of the necessary rights (to set a choreographed routine, to publicly perform, and to practice alone) are actually needed by consumers.” Given this dispute, ClicknClear is “expressing an opinion on an inconclusive question of law” and “not making representations of verifiable or ‘hard definable facts.’ ”

Even if these weren’t opinions, they were ambiguous: ClicknClear mentions on its website, quite ambiguously, which rights are “required for ensembles to make an arrangement of music to accompany your routine.” “In order for these statements to be literally false, Tresóna would have to plausibly allege that there is no instance in which these rights are required.” But whether or not these rights are needed in a given case depends on the outcome of a “fact-specific and [ ] individualized inquiry” in this “unsettled area of copyright law.”

That didn’t prevent misleadingness, but for that, Tresóna needed to “allege that consumers or retailers were misled or confused by the challenged advertisement and offer facts to support that claim” or allege deliberate, egregious deception. It didn’t. It alleged that “[c]ustomers have told Tresóna that they are facing pressure from their federations and governing bodies to use ClicknClear instead of Tresóna,” and “the pressure is driven at least in part because of ClicknClear’s false and misleading statements as well as the LVS.” But it was not enough to “identify[ ] a broad swath of people [that were] allegedly deceived.” (Now do trademark complaints.) “Tresóna fails to identify any ‘federations’ or ‘governing bodies’ that pressured consumers, nor does Tresona allege how this pressure has caused customers to buy ClicknClear’s licenses as opposed to Tresóna’s. And even if Tresóna did allege that customers were buying ClicknClear licenses as opposed to Tresóna’s, Tresóna does not allege how these decisions were because of ClicknClear’s necessary rights statements as opposed to other reasons for purchasing ClicknClear’s licenses.” [I dunno, ‘take this license and not that one to protect yourself against expensive lawsuits’ seems pretty clear in its pressure effect.]

Merely stating that there have been “LAWSUITS for copyright infringement” was literally true and thus not actionable. It also didn’t relate to an “inherent quality or characteristic of the product [at issue].”

License verification system: Was it misleading that all other licenses issued by third parties, including Tresóna’s, will return a “yellow” result, meaning the license’s legality is “unverified,” or red for “unlicensed”? No: “The LVS, ultimately, is an inherently subjective rating system that evaluates the quality of third-party licenses. Indeed, the outcome of the LVS is dependent on which factors ClicknClear believes to be important in evaluating a license. ‘A reasonable consumer would view [LVS’s] rating as just that – the defendant’s evaluation.’”

And even assuming the statements were impliedly false or misleading, Tresóna similarly failed to allege sufficient indications of consumer confusion. “The unauthorized practice of law is not a basis for a Lanham Act claim.”

Anti-Tresóna statements: ClicknClear’s statements about Tresóna’s “very bad reputation,” its representations that ClicknClear licenses are “better” or “stronger” than Tresóna’s, and its assertions that ClicknClear was in a “strong position” to harm Tresóna were nonactionable puffery.

By contrast, ClicknClear’s statements in 2021, 2024, and 2025, that Tresóna does not use a “pre-cleared model,” or that Tresóna does not offer a full legally compliant license but instead offers a “certificate,” were statements of facts that could be proven true or false. Still, Tresóna didn’t offer facts as to how these statements actually misled the public or affected their purchases, or that the statements were commercial speech: “part of an organized campaign to penetrate the relevant market.” “The statements alleged here, one in a Facebook post that has now been deleted, and two upon information and belief, do not suggest ‘widespread dissemination within the relevant industry,’ and more aptly resemble ‘isolated disparaging statements’ that ‘do not have redress under the Lanham Act.’”

The court didn’t have to reach the state claims, but it commented that Tresóna also failed to allege how ClicknClear’s statement constituted harm to the public interest, as opposed to another business.

Fairlife brand name plausibly misleading where cows allegedly lived abuse-filled lives of suffering

Bhotiwihok v. Fairlife, LLC, № 2:25-cv-01650-ODW (AGRx), 2026 WL 413749 (C.D. Cal. Feb. 13, 2026)

“In 2014, Select Milk, a dairy cooperative, partnered with Coca-Cola to launch Fairlife, a company with an eponymous line of premium milk and milk products…. Fairlife promotes, and charges more for, high levels of environmental sustainability and animal care.”

Fairlife bottles include the phrase “Recycle Me” on their labels and are stamped with a recyclability arrow, and it claims that its farms are “top in the industry for environmental sustainability.” Plaintiffs alleged that 0% of Fairlife bottles are recyclable and that the sustainability practices at Fairlife’s farms cause disproportionate environmental damage.

Fairlife also allegedly claims to follow industry-leading animal care standards and to have zero tolerance for abusive practices at farms supplying its milk, as represented by its logo:

Fairlife logo

But successive independent investigations have allegedly uncovered “horrendous animal abuse” at farms supplying Fairlife’s milk, which I will not recite but are indeed horrendous.

Plaintiffs alleged the usual California claims.   

Although the court found that plaintiffs hadn’t plausibly alleged enough Coca-Cola involvement to keep the parent company in, claims against Fairlife survived. The only allegations with sufficient particularity involved the Fairlife Logo and the recyclability claims on Fairlife’s bottle label. Nor did plaintiffs successfully plead fraudulent omission. Courts have required plaintiffs to “describe the content of the omission and where the omitted information should or could have been revealed, as well as provide representative samples of advertisements, offers, or other representations that plaintiff relied on to make her purchase and that failed to include the allegedly omitted information.” Although plaintiffs pled that Fairlife “intentionally fail[ed] to disclose material information about the products,” including that Fairlife’s products are derived from abused cows and that the products’ packaging is not recyclable, they didn’t identify where this information should or could have been revealed or which specific “advertisements, offers, or other representations” omitted critical information. Leave to amend granted if there was more.

Claims based on the logo survived as a plausible misrepresentation of Fairlife’s animal care practices. “[B]rand names can be an especially powerful source of misleading information,” even if the brand name itself is not a recognized word. Combining the words “fair” and “life” together in a brand name “may reasonably lead to the assumption that the subject of the brand lives a ‘fair life.’” Superimposed on a cartoon picture of a cow, “the implication becomes unmistakable: the cows are living a fair life. Thus, it is well within reason for a consumer to believe that, based on the Fairlife logo, the cows supplying Fairlife’s dairy products are living lives free from abuse.”

Fairlife argues that its logo was nonactionable puffery. But the Fairlife brand name, “at bottom, suggests that the cows are living lives free from abuse.” That was specific enough for a reasonable consumer to rely on, especially in context of the cow image. “Taking as true at this pleading stage the substantial evidence that shows Fairlife sources its dairy from cows that live dreadful and appalling lives, it is plausible that Fairlife’s labeling is misleading.” This may be an example of the line of cases that refuses to find puffery when no reasonable person could agree that an otherwise capacious term applied.

Recyclability claims on the bottle: Fairlife argued that California provided a safe harbor provision through October 4, 2026. The FAL’s specific regulation of recyclability claims specifically does not apply to “[a]ny product or packaging that is manufactured up to 18 months after the date the department publishes the first material characterization study required” by the law (or before January 1, 2024 if that was later). “Read plainly, it appears that the California Legislature intended to give companies eighteen months after publication of a generally applicable material characterization study to comply with recycling guidelines.” This occurred on April 4, 2024. This safe harbor provision foreclosed the recyclability claims until later in the year. When “specific legislation provides a ‘safe harbor,’ plaintiffs may not use the general unfair competition law to assault that harbor.” Nor may they use express warranty claims.

disgorgement can't be a lottery windfall--even when D was engaged in illegal gambling

TNT Amusements, Inc. v. Torch Electronics, LLC, 2026 WL 411747, No. 4:23-CV-330-JAR (E.D. Mo. Feb. 13, 2025)

Previously. TNT leases traditional arcade games in retail locations throughout Missouri. Torch Electronics leases “no-chance” gaming devices in the same market. A jury accepted TNT’s argument that Torch’s devices are illegal slot machines that divert TNT’s customers in violation of state law. Statements that the devices eliminated chance were false, and therefore the statement “this amusement device does not fit any definition of a ‘gambling device’ in the state of Missouri and is not prohibited for use by you” was also false. The jury awarded $500,000 in damages, which the court found was $125,000 for lost profits and the rest for injuries to TNT’s reputation and goodwill. (In a separate opinion, 2026 WL 413322, the court enters declaratory judgment that these are illegal gambling devices in Missouri, given the trial evidence, including from both parties’ experts, that the games contain “multiple elements of chance.”)

The court also found the case exceptional for purposes of attorneys’ fees. “[T]he Missouri Gaming Commission declared Torch Devices illegal in 2019. However, because the Commission’s jurisdiction is limited to licensed operators, Torch simply ignored the Commission’s opinion and continued to operate outside the Commission’s regulatory reach.” The Missouri Highway Patrol and multiple local law enforcement agencies also warned Torch that its devices were illegal, and several prosecutors pursued charges against its customers, and one store was convicted. “Missouri jurisprudence since 1913 has held that a gaming machine with a prize viewer is still a gambling device. Appellate courts in sister states have reached the same conclusion in recent years, as cited in the Commission’s 2019 opinion.”

Thus, “Torch was on notice since at least 2019 that its commercial representations defied the realities of the legal landscape and were therefore willfully and deliberately false when viewed in context. Torch simply chose to ignore existing authority in pursuit of profit. For the same reasons, the substantive strength of TNT’s position, both in fact and law, was exceptionally compelling, as reflected by the jury’s swift and significant verdict in TNT’s favor.” There were also some litigation shenanigans.

The court also planned to award partial disgorgement; out-of-circuit precedent suggests as factors “whether the defendant had the intent to confuse or deceive, whether sales have been diverted, the adequacy of other remedies, any unreasonable delay by the plaintiff in asserting its rights, the public interest in making the misconduct unprofitable, and whether the case involves palming off.” And, as the Supreme Court said, “A ‘defendant’s mental state is a highly important consideration in determining whether an award of profits is appropriate.’ ” Ultimately, “the district court is given broad discretion to award the monetary relief necessary to serve the interests of justice, provided it does not award such relief as a penalty.”

From 2017 to 2023, Torch collected over $5.5 million from 100 machines in locations where it overlapped with TNT, though Torch operates more than 6,000 devices statewide and might have profited by $68 million in the past year alone. The court declined to order statewide disgorgement (which suggests that Torch will still continue to break the law unless stopped by regulators) but did ask for briefing on appropriate disgorgement.

Torch relied on Retractable Techs., Inc. v. Becton Dickinson & Co., 919 F.3d 869 (5th Cir. 2019), “where the Fifth Circuit opined that disgorgement, separate from recovery of diverted profits, would have constituted a windfall to the plaintiff.” The court found this non-binding case “largely inapposite,” but noted that it still affirmed the broad discretion of a district court to consider the equities.

Torch also argued that it had a good faith belief in the veracity of its statements, based on a 2017 opinion letter from a Chicago law firm and the fact that some county prosecutors opted not to pursue charges involving Torch devices. “But the opinion letter was supplied by an Illinois lawyer prior to the Missouri Gaming Commission’s unequivocal warning in 2019, and the county prosecutors who abstained from pursuing charges did so in direct reliance on Torch’s false statements at issue here…. Overall, the evidence belies any objectively reasonable claim of good faith.”

In addition, Truck Equip. Serv. Co. v. Fruehauf Corp., 536 F.2d 1210 (8th Cir. 1976), although based on an earlier version of the statute, supported the view that “where the evidence shows willfulness and bad faith, disgorgement may exceed a plaintiff’s demonstrated losses in order to serve as a deterrent.” The court was also sympathetic to TNT’s argument that “the Lanham Act offers multiple forms of recovery precisely due to the inadequacy of diverted sales and the difficulty of proving the full extent to which a defendant’s misconduct has harmed the plaintiff or impacted the market.” The court wasn’t convinced that the amount awarded by the jury fully compensated TNT for the totality of its market injury, given that TNT was a long-established business that suffered a loss of 35% after Torch entered; some of TNT’s accounts lost to Torch had been TNT customers for 20 to 30 years. Though the parties compete for floor space, TNT’s owner explained that “it’s not a fair fight” and “We can’t generate the revenue that slot machines generate.”

The court also found that deterrence was an important consideration and that disgorgement would serve the interests of justice and further the public interest of making Torch’s conduct unprofitable. “If Torch hadn’t falsely represented and marketed its devices as ‘no-chance’ games exempt from Missouri’s definition of a gambling device, Torch couldn’t have operated anywhere in its current territory. Rather, it could only have operated in licensed casinos subject to state gaming taxes benefiting public education. One hundred percent of its revenue is attributable to its misrepresentations.”

However, given the scope of Torch’s operations, “a disgorgement award sufficient to render Torch’s advertising unprofitable would inevitably result in a ‘lottery-level windfall’ to TNT.” Thus, disgorgement limited to overlapping locations was appropriate to deter Torch’s willful conduct “and render it at least slightly less profitable, to fully compensate TNT for its market loss, and to serve the greater interests of justice given the unique circumstances of this case.” Consumers spent over $32 million on Torch devices in overlapping locations alone during the relevant period. “Torch has profited tremendously from its misrepresentations and had avoided regulation, taxation, and prosecution by virtue of its government relations efforts and the Gaming Commission’s limited jurisdiction. In this regulatory void, TNT’s lawsuit not only vindicates its own competitive interests but also protects consumers from the fallacy of ‘no-chance’ gaming going forward.” Further briefing, and possibly discovery, was required to set the size of the award.

CFP: emerging First Amendment scholars

Second Annual Aspiring Free Speech Scholars Workshop
jointly sponsored by the Sandra Day O’Connor College of Law (ASU)
and the Hoover Institution (Stanford University)

Are you a law student, judicial law clerk, lawyer, or beginning academic hoping to publish a journal article on free speech law? Would you like the opportunity to get advice about your draft from leading free speech scholars?

If so, send us your draft by Sunday, August 16, 2026. (This should still be a draft article, not an article that’s already published or expected to be published within six months.) We plan to select the submissions that we think are particularly promising, and invite their authors to a workshop where they can present their papers and get helpful feedback on them. The workshop will be Saturday, October 24, 2026 (with dinner the night before) at the Sandra Day O’Connor College of Law in Phoenix, and we will inform the selected authors by Tuesday, September 8, 2026.

We have funds to pay for transportation and lodging for the selected authors’ trips. Eligibility is limited to people who have so far published three or fewer law-related journal articles. 

We also plan to officially recognize zero to three of the top articles among those we review. If the authors wish, they can also have their articles reviewed for publication in the Journal of Free Speech Law (http://JournalOfFreeSpeechLaw.org), presumably after they revise the articles in light of the workshop feedback.

If you’re interested, please submit your draft at http://tinyurl.com/aspiring-free-speech (Google logon required). Please single-space, and format the article nicely, so we can more easily read it.

Please do not include your name or law school affiliation in the document or document filename, and please do not include an author’s note thanking your advisors and others. Please make your filename be the title of your article (or some recognizable subset of the article title). We want to review the article drafts without knowing the authors’ identities.

If you have questions, please check http://tinyurl.com/aspiring-free-speech-faq; if your question isn’t answered there, please e-mail volokh@stanford.edu.

Many thanks to the Stanton Foundation for its generous support.

* * *

James Weinstein, Dan Cracchiolo Chair in Constitutional Law and Professor of Law, Sandra Day O’Connor College of Law, Arizona State University

Eugene Volokh, Thomas M. Siebel Senior Fellow, Hoover Institution (Stanford University), and Gary T. Schwartz Distinguished Professor of Law Emeritus, UCLA School of Law

"ambiguity" is taking hold in consumer protection class actions, but it's not the Lanham Act concept

Ramirez v. S. Martinelli & Co., 2026 WL 272621, No. 25-cv-07569-NC (N.D. Cal. Feb. 2, 2026)

Martinelli’s apple juice products’ front labels state either “Premium 100% Juice Not From Concentrate” or “100% Juice From U.S. Grown Fresh Apples.” The products now contain ascorbic acid, a preservative, listed in the ingredients on the products’ back labels. Martinelli allegedly intentionally designed the products’ labeling so they appear to contain only juice because consumers are willing to pay more for a product without additives, and charges roughly fifty percent more than comparators. FDA and state law allegedly requires “with added preservatives” on the front label.

Plaintiffs brought NY and California statutory claims, which the court declined to dismiss.

The court found deception plausible: “Premium 100% Juice Not From Concentrate” and “100% Juice from U.S. Grown Fresh Apples” were “likely to deceive a reasonable consumer into believing that the products contain only apple juice, without other ingredients. That is, reasonable consumers could see the front label as making an unambiguous representation which would not require further information.”

Under consumer protection precedents, “[j]ust because the labels are subject to two reasonable interpretations—that the product is 100% juice, or that the juice is 100% from fresh apples/not from concentrate—does not make it ambiguous” such that a reasonable consumer is required to consult the back label.  Instead, the labels could be “unambiguously deceptive to an ordinary consumer, such that the consumer would feel no need to look at the back label.” 

[I think it’s bad to have two different definitions of “unambiguous,” one for competitors and one for consumers, applied to the same “false advertising” concept, especially since none of the courts I’ve seen have acknowledged this difference or given a theoretical justification therefor. These conflicting definitions are inevitably going to cause legal confusion. “Plausibly sufficient to convey a specific false message, without the consumer needing to check for more information” might be better than “unambiguous” for the consumer protection class action context; it much better captures the concept although it is of course longer.]

Nor did the claims rest solely on a violation of federal law: the front labels were plausibly misleading and the plaintiffs alleged reliance and resulting injury.

The court did kick out a punitive damages request, but not warranty/unjust enrichment claims or a request for injunctive relief.

conducting dueling internet searches converts attys into fact witnesses in TM case

Vicious Brands, Inc. v. Face Co., No. 24-cv-04996-LJC, 2026 WL 276178 (N.D. Cal. Feb. 3, 2026) (magistrate)

Plaintiff, aka Saints & Sinners, sued Face, aka Skin Saint, alleging trademark infringement and false advertising. The court granted the motion to dismiss the false advertising claims but denied summary judgment on trademark infringement, except for reverse confusion, reflecting the higher barriers to false advertising claims.

Plaintiff has sold Saints & Sinners haircare products since 2016, using a mark that includes two horizontally conjoined instances of the letter S:

It has registrations including that mark.

Defendants sell beauty consultation services and skincare products under the Skin Saint trade name, using a mark that consists of two vertically conjoined instances of the letter S:

They began using it in 2021; Saints & Sinners first learned of it in 2023. “Defendants sell their products through a physical location in Michigan and, to a lesser extent, nationally through their website” and through shop.app. They promote themselves on social media and some national television appearances.

Saints & Sinners alleged that it has been planning to expand into skincare.

False advertising: Saints & Sinners alleged that “Defendants have engaged in false advertising by making misleading and deceptive claims about their products in commercial advertisements and promotions, including representations that their products are medical grade, provide anti-aging results equivalent to that of medical cosmetic treatments like injectable fillers and toxins, and reverse/prevent aging changes in the skin.”

But Saints & Sinners didn’t have standing because there was no imminent injury. (Why is there standing to claim trademark infringement, then? Sigh.)

It alleged that it was “ready to launch its skincare line upon finalization of product attributes and regulatory review,” and that its products would “directly compete with the serums, creams, and other topical formulations marketed and sold under Defendants’ brand … namely: cleanser; moisturizer; creams; cleansers [sic]; toners; masks; skin treatments; and serums, all in Class 3.” It also alleged that both parties sell through e-commerce to the same general consumer demographics seeking moisturizing, antioxidant, and anti-aging skincare products, targeting the same customer demographics— “customers seeking luxury and performance skincare products”—and sold through overlapping channels, including online retail/ecommerce platforms like Amazon.

The Supreme Court has “repeatedly reiterated that threatened injury must be certainly impending to constitute injury in fact, and that allegations of possible future injury are not sufficient.” In Lanham Act cases, the Ninth Circuit has “generally presumed commercial injury when defendant and plaintiff are direct competitors and defendant’s misrepresentation has a tendency to mislead consumers.” A plaintiff can meet that burden “using actual market experience and probable market behavior,” which in the absence of “lost sales data” might be done by “creating a chain of inferences showing how defendant’s false advertising could harm plaintiff’s business.” At issue here was “harm to reputation or sales, which generally arises from direct competition.”

For Article III, the court pointed to the classic Lujan case, where environmental plaintiffs’ “mere profession of an intent, some day, to return” to sites allegedly harmed by the challenged projects was insufficient to satisfy Article III’s injury requirement. As there, “the plaintiff alleges only an injury at some indefinite future time, and the acts necessary to make the injury happen are at least partly within the plaintiff’s own control.”

In Tercica, Inc. v. Insmed Inc., No. C 05-5027 SBA, 2006 WL 1626930 (N.D. Cal. June 9, 2006), the court found false advertising standing against an intended competitor in the pharmaceutical industry where the plaintiff had obtained “FDA approval ... and product distribution [was] likely imminent.” And courts and commentators have stated that “actively preparing to produce the article in question” is sufficient as “the last point before the point of no return” in the context of declaratory judgments. But this wasn’t a declaratory judgment case where the plaintiff would otherwise risk infringement liability. “So long as there are necessary steps beyond Plaintiff’s control, or doubt as to if or when a competing product will actually come to market, Plaintiff has alleged only ‘possible future injury’ as a result of Defendants’ purportedly false advertising, rather than the ‘certainly impending’ injury necessary ‘to constitute injury in fact.’” The allegations here indicated that Saints & Sinners’ products remain subject to “finalization of product attributes and regulatory review” before they come to market, “raising questions of whether their launch could still be derailed.”

This analysis also applied to statutory standing under Lexmark. The court did, however, reject any suggestion that a competitor in a “market [with] numerous participants” lacks a sufficient expectation of “ ‘automatically’ displace[d]” sales to support standing under the Lanham Act— “a premise that would seem to preclude most if not all Lanham Act false advertising claims in typical markets with multiple competitors.” The allegations of the complaint were sufficient to support a plausible inference that, if or when Sinners & Saints products come to market, at least some of them will compete directly with at least some of defendants’ products. Leave to amend granted.

Trademark/summary judgment: I gotta admit, this one seems extremely thin to me, but nonetheless the parties must proceed on the forward confusion theory.

Plaintiff’s double-S mark appears on many (perhaps all) of its products, typically with the double-S mark positioned above Saints & Sinners, which is in turn positioned above a product title. The product packaging tends to be a solid color or gradient, with the mark and text generally displayed in monochrome white, silver, or black. Saints & Sinners products are mostly sold at suggested retail prices ranging from $20 to $95, and in third-party beauty subscription boxes. And, as discussed, Saints & Sinners planned to expand.

Skin Saint’s founder testified at a deposition that she used a “logo generator” to develop a new mark in 2020, and settled on the double-S mark because it was visually appealing and resembled her logo for her related FACE clinic, which “is a wave with an F.” She did not research whether the mark was similar to other marks used by other companies. Skin Saint’s products often display their double-S mark positioned vertically above the words “SKIN SAINT,” in turn above a product name or description. The packaging is white and the mark and text are black. Since they began using the accused mark in 2021, defendants have sold significantly more Skin Saint products through their clinic than through their website.

Saints & Sinners learned of Skin Saint’s mark from a trademark watch report that characterized defendants’ mark as having a “Low risk” of conflict with plaintiff’s mark. Plaintiff nonetheless opposed, which is ongoing.

Plaintiff’s counsel offered “screenshots of searches [he] personally conducted on the SHOP.app website” that show some of defendants’ products among search results for the search query “Saints and Sinners skincare” and other similar queries. But defense counsel was unable to replicate those results and did not find any of defendants’ products when running the same searches on Shop.app. (Hmm… a personalized algorithm might be doing this if, as is plausible, plaintiff’s counsel had sought out defendants’ products before.) Defendants’ sales through Shop.app were 28 orders for a total of $2,468 in the first ten months of 2025 and less in 2024.

There was no evidence of actual confusion or other harm. “A Google search for either party’s name does not return the other party’s website or products in the first ten pages of results.” Several other skincare and haircare brands use marks with a double S, but none use “saint” or “sinner” in their trade names.

Saints & Sinners also submitted an expert declaration from “a beauty industry consultan[t] specializing in market strategy and consumer behavior across skincare, haircare, and adjacent personal care categories” who opined that haircare and skincare markets were converging to focus on scalp care (the “skinnification” of hair), that impulse buying of beauty products in the social media era was common, and that consumer confusion was likely, although the court didn’t rely on that last for its summary judgment ruling.  

As for those searches on shop.app: “Whether intentionally or not, both parties’ attorneys have made themselves fact witnesses, and the Court now orders that the parties may take their depositions regarding the limited issue of their Shop.app searches within the time that the parties have reserved for other specific depositions.” The court wouldn’t disregard either parties’ attorneys’ searches. [Not sure depositions would help if the issue is algorithms! Bringing in the specific computers, or at least logging in as the specific attorneys, might do more.]

Basically, the multifactor confusion inquiry means that it’s hard to grant summary judgment for defendants. Unfortunately, along with deeming the double-S logo arbitrary and possessed of some commercial strength, the court also quoted out-of-circuit precedent that incontestable registrations “are presumed to be strong marks.” [I didn't pull the registrations--but the description that the registrations "include" rather than consist of the double-S would also cut against this conclusion, since what is incontestable is the registration as a whole, not parts of it.]

For reverse confusion, though, “Defendants’ relatively modest sales—at least on the scale of the national skincare or beauty market as a whole—undermine any implication that Defendants pose a serious risk of dominating the public’s perception of the market.”

And, though the parties’ “marks have meaningful differences, such that someone comparing them side by side would never consider them to be the same mark,” there was enough similarity to go to a jury, even though it was perhaps “a close call,” given the parties’ monochromatic color palettes and overlapping use of “saint.”

And, even if a lack of survey evidence should be presumed to favor the defendant, “whether a presumption has been overcome is normally a question for the jury.” [I think this presumption is best applied to large companies with large litigation budgets: if P&G doesn’t submit a survey, we can infer that it expected bad results. I don’t think it’s a good idea to disregard the absence of a survey in all summary judgment contexts, but the court here does because it focuses on the Ninth Circuit’s caution that summary judgment is disfavored in trademark infringement cases.]

Likewise, the court discounted the absence of any actual confusion evidence because the parties weren’t in “direct local competition over a period of several years.” “It remains possible that consumers have confused the two marks, and either purchased or declined to purchase products based on that mistake, without alerting either party to their having done so.” How is the jury to assess this possibility in assessing likelihood?