Category Archives: Advertising Law

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

BTG Int’l: Can an Accused Infringer’s Victory In an Inter Partes Review Proceeding Lead to Its Defeat in Patent Infringement Litigation?

Use of the inter partes review (IPR) process as a means to challenge the validity of a patent could be dealt a blow by a patent case currently on appeal to the Federal Circuit, BTG International Ltd. v. Amneal Pharmaceuticals LLC, No. 15-cv-5909, 2018 U.S. Dist. LEXIS 183854 (D.N.J. Oct. 25, 2018), in which Appellants are asking the Court to conclude that, under a literal reading of the relevant statutes, an accused infringer is estopped from using an argument for invalidity of a patent because the argument proved to be successful in an IPR.  The defendants in BTG say this result would be absurd, and even though the United States Patent and Trademark Office (“PTO”) urges adoption of the literal interpretation of the statute, it concedes that it is “counterintuitive.” The America Invents Act of 2011 included provisions allowing any person to petition the PTO for an inter partes review of the claims of an issued patent, on the ground that the prior….. To continue reading this legal news please click Read full information...

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It wasn't malpractice to argue unauthorized use of name was false association, not false advertising

Majorsky v. Lieber, No. 798 WDA 2017, 2019 WL 1092543 (Pa. Super. Ct. Mar. 8, 2019)Majorsky and two business partners, Douglas and Natale, purchased the D.J. Hess Advertising Company. “D.J. Hess is a partnership that sells promotional products, items such as keyrings and pens inscribed with a company’s name. Two years after acquiring the business, Douglas and Natale voted to change the compensation scheme for partners.” As a result, Majorsky left and formed other competing businesses, including, Peg’s Custom Products and sued Douglas and Natale for violations of the Pennsylvania Uniform Partnership Act, as well as damage to his business interests and reputation in the promotional products industry. Douglas and Natale counterclaimed, alleging that Majorsky’s new business competed with D.J. Hess in violation of his fiduciary duty to the partnership. A consent verdict dictated that Douglas and Natale pay Majorsky $10,000 in damages. That action was….. To continue reading this legal news please click Read full information...

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sales show format and timing are functional, court finds

VBS Distribution, Inc. v. Nutrivita Laboratories, Inc., No. SACV 16-01553-CJC(DFM), 2018 WL 5274172 (C.D. Cal. Sept. 10, 2018)The parties compete in the market for nutritional supplements and television programs. VBS sued for Lanham Act and California state unfair competition law violations, as well as other claims including trade secret misappropriation.  None worked.VBS alleged two unlawful schemes, the first involving false advertising of a dietary supplement. The supplement defendants made and sold “Arthro-7,” a dietary supplement for joint relief, with 60% of the market (perhaps among elderly people/people of Vietnamese descent). VBS sold a competing dietary supplement called JN-7 Best, with 10% of the market.  Defendants allegedly falsely advertised that Arthro-7 is “100% natural herbal,” that over 8 million bottles have been sold, and that Arthro-7 has been “clinically tested” and is “Doctor Recommended.”….. To continue reading this legal news please click Read full information...

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plaintiff suing for noncomparative false advertising fails to establish irreparable harm

True Organic Products, Inc. v. California Organic Fertilizers, Inc., 2019 WL 1023888, No. 18-CV-1278 AWI EG (E.D. Cal. Mar. 4, 2019)If trademark owners have cause to bemoan eBay’s application to Lanham Act claims, false advertising plaintiffs have even more, as this case demonstrates. Plaintiff True sells organic fertilizers, and is one of the largest and most sought-after manufacturers of organic fertilizers on the West Coast. Defendant COFI directly competes with True for sales of organic liquid fertilizer containing at least 4% nitrogen.COFI sells Phytamin Clear, whose label states that it contains 4% nitrogen, which is composed of 3% nitrate nitrogen and 1% ammoniacal nitrogen. Phytamin Clear’s label also reads: “Derived from mined seabird guano.” The Material Safety Data Sheet repeats the guano claim. “Phytamin Clear is appealing to growers because of its high nitrate nitrogen levels and because the clear liquid can be easily applied through….. To continue reading this legal news please click Read full information...

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supplement guide isn't "advertising or promotion" under the Lanham Act, even w/undisclosed affiliation

Ariix, LLC v. NutriSearch Corp., 2019 WL 1040135, No. 17CV320-LAB (BGS) (S.D. Cal. Mar. 5, 2019)Previous iteration discussed here. Arrix competes fiercely with Usana in the nutritional supplement market.  NutriSearch publishes the NutriSearch Comparative Guide to Nutritional Supplements, a guide used by consumers and professionals that reviews various companies’ products, including both Ariix’s and Usana’s. It’s now in its sixth edition. In 2005, individual defendant/author MacWilliam was working directly as a sales representative for Usana and writing the Guide, which he had conceived as a way to promote Usana’s products. “At the time, the Guide could have been considered commercial advertising.” But after several editions, it no longer qualifies as such.The fifth edition awarded the Gold Medal of Achievement designation to companies that meet particular standards; Ariix made a vigorous effort to qualify, but was denied while four….. To continue reading this legal news please click Read full information...

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