Category Archives: Advertising Law

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

Feds Investigate Ad Agency Media Buying Practices

According to the Wall Street Journal, federal prosecutors in Manhattan have opened an investigation into media-buying practices in the advertising industry, and have begun to issue subpoenas.  The investigation will reportedly look at, among other things, alleged non-transparent practices, including whether advertising agencies received rebates from media outlets.  The investigation comes after the 2016 report on media transparency conducted by K2 Intelligence on behalf of the Association of National Advertisers (ANA).  The report identified numerous non-transparent business practices alleged to be pervasive in the advertising industry.  For example, the report claimed media agencies were receiving rebates and incentives from media outlets and not returning those funds to advertiser clients.  The federal investigation could shed further light on such non-transparent practices and may help move the….. To continue reading this legal news please click Read full information...

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Another malware misattribution claim fails

PC Drivers Headquarters, LP v. Malwarebytes, Inc., 2018 WL 2996897, No. 18-CV-234-RP (W.D. Tex. Apr. 23, 2018)PC Drivers “offers software designed to help customers optimize the processing speed of their computers and identify software drivers ready to be updated.” Malwarebytes sells software that blocks various programs on its customers’ computers, including software deemed malicious or potentially unwanted (the latter of which are called PUPs). PC Drivers contends that, in January 2018, Malwarebytes inappropriately branded one or more of its programs as a PUP, which can make PC Drivers’ software inoperable and block access to PC Drivers’ website. This happened before, and when the software received certification from a newly developed third-party certifier called AppEsteem, Malwarebytes stopped labeling the programs as PUPs. PC Drivers alleged that it continues to carry AppEsteem certification and that its programs have not changed….. To continue reading this legal news please click Read full information...

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Non-TM owner can plead false advertising claim for confusing use of TM it used to own

Desmond v. Taxi Affiliation Services LLC, 2018 WL 4589999, No. 17 C 8326 (N.D. Ill. Sept. 25, 2018)Desmond is the Chapter 7 Trustee for the Bankruptcy Estate of Yellow Cab Affiliation, a former Chicago taxicab affiliation with over 1600 dues-paying members who licensed the design mark from YCA. He sued a bunch of defendants for allegedly engaging in a scheme to render YCA insolvent, so that it could not pay its creditors, and then establishing a new company that appropriated YCA’s valuable trade dress. After a passenger was injured in a taxi and sued YCA as a defendant, some of the defendants here allegedly established defendant TAS to prevent creditors from reaching YCA’s assets. For example, TAS collected and retained all payments from YCA members pursuant to their affiliation agreements with YCA, then transferred some of that money, disguised as “management fees” and “referral fees,” to YCA’s officers and directors; some defendants….. To continue reading this legal news please click Read full information...

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modifying a false advertising injunction is justified when likelihood that claim is false has changed

De Simone v. VSL Pharmaceuticals, Inc., No. TDC-15-1356, 2018 WL 4567111 (D. Md. Sept. 24, 2018)De Simone sought modification of a preliminary injunction governing statements it could make about a probiotic product, VSL#3and its relationship to De Simone’s now-competing product, Visbiome.  (I was a bit critical at the time.) They sought to be able to advertise that ExeGi Pharma was the exclusive provider of the “De Simone Formulation,” the term they have coined for the combination of probiotic strains developed by De Simone and first commercialized in the United States as VSL#3; to cite clinical studies with the term “VSL#3” in the title as part of their promotional materials; and to engage in other speech critical of VSL#3. As relevant here, the prior order required ExeGi to refrain from “stating or suggesting that the license agreement” between De Simone and VSL had “expired,” or asserting that “VSL#3 will no….. To continue reading this legal news please click Read full information...

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Pa. Supreme Court fixes ridiculously overbroad holding of puffery

Commonwealth v. Golden Gate National Senior Care LLC, — A.3d —-, 2018 WL 4570102, No. 16 MAP 2017 (Pa. Sept. 25, 2018) The Pennsylvania Supreme Court reinstated a bunch of claims against a bunch of nursing homes under the state Unfair Trade Protection and Consumer Protection Law, though not unjust enrichment claims. In essence, the nursing homes allegedly made materially misleading statements about the nature and quality of the care provided to their nursing home residents. They allegedly knowingly failed to provide the level of care they advertised, as they purposefully understaffed the facilities so as to maximize their profits. Chain-wide misrepresentations included brochures, videos, websites, and video advertisements, with claims such as: “Snacks and beverages of various types and consistencies are available at any time from your nurse or nursing assistant.”“We have licensed nurses and nursing assistants available to provide nursing care and help with….. To continue reading this legal news please click Read full information...

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