Winans v. Ornua Foods North America Inc., --- F.Supp.3d ----, 2024 WL 1741079, No. 2:23-cv-01198-FB-RML (E.D.N.Y. Apr. 23, 2024) Plaintiffs alleged that the presence of per- and polyfluoralkyl substances (“PFAS”) in Kerrygold butter made the use of “pure Irish butter” into false advertising under NY law. The court declined to dismiss the complaint. Additional background: “[I]n early 2023, in response to a New York state law banning PFAS in food packaging, Ornua issued a recall of the Kerrygold Butter Products because the packaging contained PFAS. Exposure to PFAS — a category of synthetic, art ..read more

Overjet, Inc. v. VideaHealth, Inc., 2024 WL 3480212, No. 24-cv-10446-ADB (D. Mass. Jul. 19, 2024) The court denied Overjet’s request for a preliminary injunction on copyright and false advertising claims, concluding that Overjet’s selection of colors and shapes for annotating dental x-rays was unlikely to be protected by copyright and that the literally false statements identified by Overjet had been removed, thus preventing a finding of irreparable harm. “Overjet uses AI to scan dental radiographic X-rays and detect dental diseases. Specifically, Overjet uses an approach called segmentation ..read more

Portkey Tech. PTE Ltd v. Venkateswaran, 2024 WL 3487735, No. 23-CV-5074 (JPO) (S.D.N.Y. Jul. 19, 2024) Another case that starkly shows the effects of trademark’s abandonment of any harm requirement, not to its benefit, where false advertising claims fail because alleged misstatements about the extent of the defendant’s past involvement with a company don’t do it any identifiable harm, but trademark claims succeed because something something affiliation. (Maybe companies can resurrect noncompetes by prohibiting uses of their trademarks in former employees’ resumes! This is a joke, but that does ..read more

Eric Goldman and I are pleased to announce the seventh edition of our casebook, Advertising & Marketing Law: Cases & Materials. It is available for purchase in the following formats: * DRM-free PDF file. Price: $12 * Kindle. Price: $9.99 * Print-on-demand paperback from Amazon. Price: $30 + shipping and tax. Paperback buyers can get a free PDF file by emailing me a copy of their receipt showing which edition they bought. If you are a professor, or are hoping to teach the course, and would like a free evaluation copy, please email Eric (egoldman@gmail.com). A sample chapt ..read more

Whiteside v. Kimberly Clark Corp., No. 23-55581, 2024 WL 3435308, -- F.4th --- (9th Cir. Jul. 17, 2024) Whiteside alleged that KC’s “plant-based” baby wipes were misleadingly advertised; the court of appeals revived some claims that the district court had dismissed for failure to sufficiently plead misleadingness. The same stresses that have caused courts to occasionally modify the (nontextually-based) Lanham Act distinction between “explicitly false” and “misleading” here show up with competing interpretations of what an “unambiguous” front-of-package claim means. Just as the Lanham Act’s tex ..read more

Banks v. R.C. Bigelow, Inc., No. 2:20-cv-06208-DDP-RAOx, 2024 WL 3330554 (C.D. Cal. Jul. 8, 2024) The court here grants the consumer plaintiffs’ motion for partial summary judgment on their theory of falsity of Bigelow’s “manufactured in the USA” claim for its tea bags. All of the products at issue use tea leaves grown and processed abroad. Processing ves includes plucking, withering, rolling, oxidizing, drying, and sorting. “It is this processing which determines the type of tea — black, green, or oolong.” Bigelow then imports the tea leaves, blends and packages the tea into its tea bag produ ..read more

Nike, Inc. v. StockX LLC, 2024 WL 3361411, No. 22-CV-0983 (VEC) (S.D.N.Y. Jul. 10, 2023) Nike sued over StockX’s use of Nike trademarks on StockX NFTs without Nike’s consent and alleged sales of counterfeit Nike sneakers despite allegedly guaranteeing that all products sold by StockX were authentic. This opinion deals with various Daubert motions, allowing at least some of the testimony of eight challenged experts in. Counterfeits background: Unlike some other major resellers like eBay, StockX acts as an active intermediary. Prior to listing a product for sale on its website, StockX takes phys ..read more

 Spotted in the wild: Team Blood Donor "cooling towel" with five colored, overlapping blood drop outlines on label Inova says, "[t]he Olympic-themed gifts add a fun and engaging element to the donation experience, making it more likely for donors to return and continue supporting our lifesaving mission." Unfair free riding or normal participation in popular culture? http://tushnet.blogspot.com/feeds/posts/default?alt=rss ..read more

Berrin v. Delta Air Lines, Inc., 2024 WL 3304815, No. 2:23-cv-04150-MEMF-MRW (D.C. Cal. Mar. 28, 2024) The court declined to find Berrin’s consumer protection claims against Delta based on its “carbon neutral” advertising preempted by the Airline Deregulation Act (ADA, confusingly enough), though that wasn’t the end of the inquiry. Since March 2020, Delta has repeatedly touted itself as “the world’s first carbon-neutral airline.” This claim was based on carbon offsetting via participation in the voluntary carbon offset market. Berrin alleged that “foundational issues with the voluntary carbon ..read more

Noriega v. Abbott Laboratories, --- F.Supp.3d ----, 2024 WL 402925, No. 23 Civ. 4014 (PAE) (S.D.N.Y. Feb. 2, 2024) Noriega alleged that Abbott’s PediaSure falsely advertised that it was “[c]linically proven to help kids grow.” The packaging claim also contains an asterisk directing a consumer to a statement on the labeling that reads, in smaller font: “Studied in children at risk of malnutrition.” The label also includes a cartoon giraffe next to, and exceeding the height of, a cartoon ruler. example package with "clinically proven" claim circled On its website, Abbott lists six clin ..read more