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

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

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

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

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

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

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

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

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

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

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

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

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

would-be competitor lacks Lanham Act standing

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

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

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

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

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

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

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