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

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

Reese's Peanut Butter Pumpkins with carved face on package

actual candy

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

Jack-o'-lantern molds for candy

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

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

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

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

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

Amicus in section 230 false light case

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

Amicus in Rise & Shine

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

Summary of argument:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Under Ninth Circuit precedent,

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

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

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

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

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