Friday, January 05, 2024

"2x Omega" that wasn't 2x the regular product was plausibly misleading

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Caldwell v. Nordic Naturals, Inc., 2024 WL 24325, No. 23-cv-02818-EMC (N.D. Cal. Jan. 2, 2024) Caldwell alleged that the dietary supplemen...
Wednesday, January 03, 2024

sending emails under former employees' names may be reverse passing off

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LoanDepot.com, LLC v. CrossCountry Mortgage, LLC, 2023 WL 9022893, No. 22-cv-5971 (AS) (S.D.N.Y. Dec. 29, 2023) loanDepot alleged that CCM...

comparison charts could infringe, but properly labeled internal search didn't

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Penn Engineering & Manufacturing Corp. v. Peninsula Components, Inc., 2023 WL 9051998, No. 19-513 (E.D. Pa. Dec. 28, 2023) Penn Engine...
Tuesday, January 02, 2024

"plant butter with almond oil" plausibly implies significant amount of almond oil

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Reyes v. Upfield US Inc., --- F.Supp.3d ----, 2023 WL 6276685, No. 22-CV-6722 (KMK) (S.D.N.Y. Sept. 26, 2023) Reyes alleged that the label...

"One a Day" plausibly misleads when consumers need to take more than one to get full benefit

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Newman v. Bayer Corp., --- F.Supp.3d ----, 2023 WL 6318523, No. 22-CV-7087 (KMK) (S.D.N.Y. Sept. 28, 2023) Another day, another “One A Da...
Thursday, December 28, 2023

identical product labeled "For children" and sold at higher price could be deceptive

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Mendoza v. Procter & Gamble Co., No. CV 23-1382-DMG (JPRx), 2023 WL 8860900 (C.D. Cal. Dec. 20, 2023) Mendoza brought the usual Califo...
Friday, December 22, 2023

Cy pres recipient in false advertising case has to be false-advertising-focused group, court rules

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 You might think that class action rules can be a bit like Calvinball, and I'd be hard pressed to disagree. Here's another hurdle to...
Wednesday, December 20, 2023

reseller's unsuccessful challenge to takedown notices leads to more successful infringement counterclaim

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CDC Newburgh Inc. v. STM Bags, LLC, --- F.Supp.3d ----, 2023 WL 6066136, 22-cv-1597 (NSR) (S.D.N.Y. Sept. 18, 2023) CDC sued STM, alleging...
Monday, December 18, 2023

Using dominant competitor's part names/numbers for comparison isn't false advertising, TM infringement, or (c) infringement

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There really should be a fee shift when a competitor harasses another competitor for daring to make comparisons of part numbers, but we don...
Friday, December 15, 2023

Reasonable consumers may not be required to peel back labels in store to read drug facts

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Zimmerman v. L’Oreal USA, Inc., 2023 WL 8587620, No. 22-cv-07609-HSG (N.D. Cal. Dec. 8, 2023) This putative class action bringing the usua...

alleged misrepresentation of partnership/approval suffices for false advertising claim

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Faire Wholesale, Inc. v. Tundra, Inc., 2023 WL 8586681, No. 23-cv-02538-JSC (N.D. Cal. Dec. 8, 2023) When does TM logic creep into false a...

false advertising is harder to prove than TM infringement because of the injury requirement (not to mention materiality)

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ImprimisRx, LLC v. OSRX, INC., 2023 WL 8604148, No. 21-cv-01305-BAS-DDL (S.D. Cal. Dec. 12, 2023) The parties are compounding pharmacies t...

Dastar bars false advertising claim against "first of its kind" ads

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 Vericool World LLC v. Igloo Prods. Corp., 2023 WL 8634803, No. 22-cv-02440-HSG (N.D. Cal. Dec. 13, 2023) Vericool alleged that Igloo fals...
Thursday, December 14, 2023

Of Bass Notes and Base Rates: Avoiding Mistaken Inferences about Copying

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 New article with Chris Buccafusco: Houston Law Review, Vol. 61, 2023 Abstract To prove copyright infringement, a plaintiff must convince a ...
Thursday, December 07, 2023

Netchoice amicus on behalf of Discord

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 Chris Sprigman and I just submitted this brief.  The focus of the argument is the associational interests of Discord's users, who want ...