In a battle of leading yogurt beverage makers, Chief Judge Colleen McMahon of the U.S. District Court for the Southern District of New York recently denied Dannon’s application for a preliminary injunction in its false...more
On November 13, 2018, the Supreme Court agreed to consider the amount of deference a federal court is required to give the Federal Communications Commission in determining what constitutes an unsolicited advertisement within...more
On December 10, 2018, the Supreme Court denied certiorari in Kimberly-Clark Corp, v. Davidson, No. 18-304 (2018), in which Kimberly-Clark sought to overturn a controversial Ninth Circuit decision allowing a plaintiff in a...more
On December 20, 2018, the Ninth Circuit affirmed the dismissal without leave to amend of a putative class action complaint against Blue Diamond Growers, which alleged that the term “almond milk” on Blue Diamond’s beverages...more
We recently blogged about the Second Circuit’s December 3, 2018 decision in Jessani v. Monini, where, applying the reasonable consumer standard, the Court of Appeals unanimously affirmed the dismissal with prejudice of a...more
On December 4, 2018, the Eleventh Circuit partially reversed the dismissal of Hi-Tech Pharmaceuticals’ suit against HBS International Corp. for alleged violations of the Lanham Act and Georgia’s Uniform Deceptive Trade...more
The Palm, known mostly for its famous steaks and caricature-filled walls, is quickly becoming notable for another reason. Recently, in an opinion following a bench trial, New York State Supreme Court Judge Andrea Masley...more
Earlier this year, we covered a decision from the District of Connecticut finding state law false advertising claims against the bottled water company Poland Spring preempted by the FDCA. Flowing from that decision is the...more
11/7/2018
/ Advertising ,
Amended Complaints ,
Beverage Manufacturers ,
False Advertising ,
Federal Food Drug and Cosmetic Act (FFDCA) ,
Lanham Act ,
Lexmark ,
Preemption ,
Private Right of Action ,
State Law Claims ,
Zone of Interests
Recently, a plaintiff’s purported class action against Diet Dr. Pepper went flat when a California federal judge held that the term “Diet” alone on a soft drink label does not constitute a claim that the soft drink will...more
Earlier this month, Judge William H. Pauley III in the Southern District of New York stayed a lawsuit against the snack bar maker KIND LLC, styled as a class action, alleging that KIND falsely marketed its products as “all...more
3/27/2018
/ Bioengineering ,
Class Action ,
Disclosure Requirements ,
False Advertising ,
Food Labeling ,
Food Manufacturers ,
GMO ,
Misleading Statements ,
New Rules ,
Stays ,
USDA
The Northern District of California recently denied class certification to a plaintiff who alleged that Gerber Products misbranded nutritional claims about baby food products in violation of state and federal labeling laws....more
2/27/2018
/ Advertising ,
Article III ,
Children's Products ,
False Advertising ,
Food and Drug Administration (FDA) ,
Food Labeling ,
Food Manufacturers ,
FRCP 23(b)(3) ,
Gerber ,
Kimberly-Clark ,
Misbranding ,
Natural Products ,
Standing
In a recently issued decision, the Second Circuit held that a food truck could not be excluded from a New York State lunch program solely because the truck and the food it sells was branded using ethnic slurs. Wandering Dago,...more
Last week, a federal judge in Manhattan examined the intersection of false advertising and trademark infringement law in connection with the alleged misuse of a certification mark, and found the plaintiff to be entitled to...more
It’s not every day that a law firm sues a competing firm for false advertising. Earlier this month, however, a Wichita, Kansas personal injury law firm did just that. Brave Law Firm sued rival firm Truck Accident Lawyer’s...more
Recently, the Supreme Court in Microsoft Corp. v. Baker, 137 S. Ct. 1702 (2017), held that the plaintiff in a putative class action involving Xbox 360 game consoles could not appeal from the District Court’s denial of class...more
Last week, we covered a summary judgment decision holding that posts on the “Science-Based Medicine” blog were not “commercial speech” under the Lanham Act, and therefore the defendant in that case was not liable for false...more
On March 22, 2017, the Supreme Court held in Star Athletica, LLC v. Varsity Brands, Inc. that designs on cheerleading uniforms may be protectable under the Copyright Act. The Court's 6-2 decision, clarifying the...more
3/27/2017
/ Cheerleaders ,
Copyright ,
Copyright Infringement ,
Fashion Design ,
Fashion Industry ,
Graphic Designs ,
SCOTUS ,
Section 101 ,
Separability ,
Sports Apparel ,
Star Athletica v Varsity Brands ,
The Copyright Act ,
Uniforms ,
Utilitarian Function
Earlier this month in Abbott Laboratories v. Adelphia Supply USA et al, the Second Circuit affirmed a district court's grant of a preliminary injunction halting the alleged sale of gray-good diabetes test strips made by...more
The National Advertising Division (NAD)’s annual conference is taking place later this month, so we are taking the opportunity to highlight some recent NAD decisions of interest. This post addresses Intraceuticals LLC...more
On May 10, 2016, Judge Joseph F. Leeson, Jr. of the Eastern District of Pennsylvania granted summary judgment on false advertising and trademark claims in favor of defendant Tyson Foods, Inc. and a subsidiary, the makers of...more
In a 6-2 decision, the Supreme Court, in an opinion authored by Justice Alito, held that the Ninth Circuit’s Article III standing analysis in Robins v. Spokeo was incomplete because it focused solely on whether the plaintiff...more
In December, the California Supreme Court held that a challenge to a farm’s labeling of its herbs as “organic” under state false advertising laws is not preempted by the federal Organic Foods Production Act of 1990 (“Organic...more
Bayer recently avoided a contempt finding concerning its Phillips’ Colon Health (“PCH”) probiotics advertising. Bayer advertised PCH as “Promot[ing] Overall Digestive Health” and “Help[ing] Defend Against Occasional...more
A group of California taxicab companies sued Uber in federal court in San Francisco for falsely advertising the safety of Uber rides and for disparaging the safety of taxi rides. Uber moved to dismiss plaintiffs’ Lanham Act...more
It’s summertime, and for many of us that means buying and applying sunscreen. Lots of it. Indeed, when selecting sunscreen rated at, say, SPF 30, we rely on national standards promulgated by the FDA. It thus comes as no...more