Rebecca Tushnet's 43(B)log
False advertising and more
Monday, January 25, 2021
surveys/expert evidence of deception still not required in consumer protection claims
Hawkins v. Kroger Co., 2021 WL 210843, No. 15cv2320 JM (AHG) (S.D. Cal. Jan. 11, 2021) Hawkins sued, with the usual California claims, bec...
when is a publisher sufficiently beholden to a manufacturer to engage in commercial speech?
Ariix, LLC v. NutriSearch Corp., No. 19-55343 (9th Cir. Jan. 22, 2021) Over a dissent, the court reverses the district court’s dismissal o...
Wednesday, January 20, 2021
Happy inauguration day to Redbubble in particular: 9th Cir. affirms functionality in Lettuce Turnip the Beet
LLTB LLC v. Redbubble, Inc., No. 19-16464 (9th Cir. Jan. 20, 2021) LTTB LLC sells t-shirts and other goods bearing its registered trademar...
Tuesday, January 19, 2021
Dastardly DoorDash fails to get restaurant complaint dismissed, including under UCL/FAL
Lona’s Lil Eats, LLC v. DoorDash, Inc., No. 20-cv-06703-TSH, 2021 WL 151978 (N.D. Cal. Jan. 18, 2021) (magistrate) This case addresses a t...
Monday, January 18, 2021
WVa SCt immunizes religious schools and camps for false advertising about services
State ex rel. Morrisey v. Diocese of Wheeling-Charleston, 851 S.E.2d 755 (W.Va. 2020) In response to a certified question, the West Virgin...
Friday, January 15, 2021
Rogers v. Grimaldi and the TMA
The legislative history of the TMA, just enacted into law, includes several paragraphs blessing Rogers v. Grimaldi and saying it's what...
Tuesday, January 12, 2021
American Merck and German Merck's TM battle doesn't involve covered "advertising injury"
EMD Millipore Corp. v. HDI-Gerling Am. Ins. Co., 2021 WL 66441, No. 20-cv-10244-ADB (D. Mass. Jan. 7, 2021) Is trademark infringement (or ...
literal falsity as Q of fact v. law and other important issues in a dueling ladder case
Wing Enters., Inc. v. Tricam Indus., Inc., No. 17-cv-1769 (ECT/ECW), 2021 WL 63108 (D. Minn. Jan. 7, 2021) After remand because the court ...
Thursday, December 31, 2020
Nominative fair use in the Seventh Circuit: a practical tool
Data Mgmt. Ass’n Int’l v. Enterprise Warehousing Solutions, Inc., 2020 WL 7698368, No. 20 C 04711 (N.D. Ill Dec. 28, 2020) Without resolving...
Wednesday, December 30, 2020
product changes as false advertising: TM may serve as express warranty of formulation & quality
Starr v. VSL Pharmaceuticals, Inc., No. TDC-19-2173, 2020 WL 7694480 (D. Md. Dec. 28, 2020) This putative class action is related to the l...
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