Category Archives: Advertising Law

Advertising law news articles, reiews, notes and blog examples.

survey isn't evidence of actual deception, court says in First Amendment case w/TM relevance

Express Oil Change, L.L.C v. Mississippi Board of Licensure for Professional Engineers & Surveyors, No. 18-60144 (5th Cir. Feb. 19, 2019) Just as a matter of client advocacy, it is time for these First Amendment cases about the government’s near-inability to regulate based on the meaning of words to start being cited in run-of-the-mill trademark and false advertising cases.  I don’t think the results will be good policy, but at the very least we will see whether courts mean what they say, or instead mean “legislative and administrative entities shouldn’t get to regulate but it’s ok when private parties sue under the same theories.”  In particular, where trademark and false advertising treat “false and misleading” as the regulable category (albeit with different standards of proof for “misleadingness” in §43(a)(1)(B) cases than for falsity), First Amendment commercial speech law has for decades made a….. To continue reading this legal news please click Read full information...

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failure to show damages from literal falsity still allowed injunctive relief

Nutrition Distribution LLC v. IronMag Labs, LLC, No. CV 15-8233-R, 2018 WL 6264986 (C.D. Cal. Nov. 16, 2018(“This is a false advertising case between two competitors in the business of selling fitness supplements.” IronMag allegedly unlawfully marketed its products as “dietary supplements” and as having no side effects.” The accused products allegedly contain Ostarine, a type of Selective Androgen Receptor Modulator (SARM), deemed dangerous to human health by the FDA. ND sought an injunction and damages under the Lanham Act, California’s UCL, and California’s FAL.The court granted summary judgment in IronMag’s favor on the money damages claims.  This was a noncomparative false advertising case, meaninig that actual evidence of some injury was essential to recover damages.  ND had no evidence of damages, and it also couldn’t recover profits without proof of harm, again because this wasn’t a comparative….. To continue reading this legal news please click Read full information...

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The Death of the Supplemental Register?

Let’s all hope that the Supplemental Trademark Register is not on the death watch. It appears though to be on life support, at times, and especially with the USPTO’s heightened focus on “merely informational” matter, including laudatory messages. This is a common basis for registration refusal nowadays: “Merely informational matter fails to function as a mark to indicate source and thus is not registrable.” Don’t all valid trademarks communicate information? Exactly. How does the USPTO know when at least one of the bits of that information is not about the source? It cannot be fatal to validity that a mark communicates more information than simply source, see a suggestive mark or a descriptive one that has become distinctive. Although not a laudatory example, the first precedential decision from the TTAB in 2019 denied Wal-Mart’s application on the Principal Register, for INVESTING IN AMERICAN JOBS, a slogan for retail store….. To continue reading this legal news please click Read full information...

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Instagram Channel, Women of Law, Features Erin Rhinehart

Faruki PLL partner, Erin Rhinehart, was featured as an influential female lawyer on the Instagram channel, Women of Law.  As an active member of her community, serving on several non-profit boards, and having served as the legal advisor to an area high school’s mock trial team, it’s a feature well-deserved.  See the full Pitchengine article, here. The post Instagram Channel, Women of Law, Features Erin Rhinehart appeared first on Faruki PLL... To continue reading this legal news please click Read full information...

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The CCPA: 5 Practical Steps to Get Started (And Yes, The Time Is Now)

While there is much about the California Consumer Privacy Act that remains unclear (with the continued potential for legislative amendment and expected guidance from the Attorney General), there is also much that is known. With an implementation date as early as January 1, 2020, there are steps companies should be taking now to start their compliance program – and which will help guide and streamline compliance going forward:1. Know Your DataIt is essential to know the data you collect, where (and who) it comes from, how it is organized and where it is stored (often referred to as “data mapping”). Some companies may have done this or a level of this for GDPR or other compliance, others may be starting almost from scratch. This is step 1 for any privacy and data security compliance program and an essential component of corporate risk management: you can’t disclose, manage or protect what you do not know you have. And, don’t forget offline data….. To continue reading this legal news please click Read full information...

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