False Advertising
[08/16]
Jules Jordan Video, Inc. v. 144942 Canada Inc.
In an action by an adult video actor claiming that defendants copied and sold thirteen copyrighted adult DVDs featuring plaintiff's performances, the district court's partial judgment as a matter of law for defendants is reversed where: 1) plaintiff's right of publicity claim was preempted by the Copyright Act; but 2) plaintiffs had standing to assert the copyright claims in question.
[08/03]
Advertise.com, Inc. v. AOL Advertising, Inc.
In Advertising.com's appeal from a preliminary injunction barring it from using a designation or trade name that was confusingly similar to AOL's ADVERTISING.COM trademark, the injunction is vacated in part where Advertise.com was likely to rebut the presumption of validity and prevail on its claim that ADVERTISING.COM was generic.
[08/02]
Osmose, Inc. v. Viance, LLC
In a false advertising action based on defendant's release of several advertising statements expressing serious safety concerns regarding the use of wood treated with plaintiff's copper-based wood preservative, an injunction in favor of plaintiff is affirmed in part where: 1) defendant's statements regarding serious safety concerns arguably could be construed as more than general statements of opinion; and 2) the district court did not clearly err in finding that the tests performed did not support defendant's conclusions regarding the safety and efficacy of the preservative. However, the order is vacated in part where the district court abused its discretion by enjoining defendant regarding plaintiff's environmental advertisements because the court neither identified nor analyzed any statements by defendant to that effect.
[07/01]
Santa's Best Craft, LLC. v. St. Paul Fire & Marine Ins. Co.
In plaintiff's suit against its insurer, arising from an underlying suit against the plaintiff over its marketing of Christmas lights for copying packaging design and for using false and deceptive language, district court's judgment is affirmed where: 1) the insurer had, but did not breach, a duty to defend; 2) the district court properly declined to require the insurer to reimburse plaintiff's contract indemnitee's expenses; but 3) the case is remanded to resolve whether the insurer owes prejudgment interest on litigation expenses and reimbursement for the settlement expenses in the underlying suit.
[06/29]
In re Tobacco Cases I
In People's action against defendant, R.J. Reynolds Tobacco Company, seeking to enforce a consent decree entered on a master settlement agreement (MSA), trial court's order in favor of the plaintiff is affirmed where: 1) the images defendant used in an advertising campaign referred to as "Camel Farms" were cartoons within the meaning of the MSA; and 2) defendant's claim that the trial court erred on determining that it has authority to assess sanctions against it for violating MSA and the consent decree by using cartoons in its advertising need not be addressed as the court did not actually assess any sanctions against defendant.
[06/21]
Kleffman v. Vonage Holdings Corp.
In plaintiff's class action suit under section 17529.5(a)(2), which makes it unlawful to advertise in a commercial e-mail advertisement (i.e. spam) that "contains or is accompanied by falsified, misrepresented, or forged header information," dismissal of the complaint for failure to state a claim is affirmed as sending commercial e-mail advertisements from multiple domain names for the purpose of bypassing spam filters is not unlawful under section 17529.5(a)(2).
[06/10]
Pequignot v. Solo Cup Co.
In a licensed patent attorney's qui tam action under 35 U.S.C. section 292 alleging that defendant had falsely marked its products with expired patent numbers for the purpose of deceiving the public, district court's judgment is affirmed in part and vacated in part where: 1) summary judgment of no liability in favor of defendant was proper as false marking, combined with knowledge of the falsity, merely creates a rebuttable presumption of intent to deceive the public, and here, defendant provided credible evidence that its purpose was not to deceive the public with either the expired patent markings or the "may be covered" language, and plaintiff raised no genuine issue of material fact showing otherwise; and 2) district court's determination on the meaning of the word "offense," in holding that defendant could have committed at most three offenses is vacated as Forest Group, 590 F.3d 1295 holds that every false marked product constitutes an "offense" under section 292.
[06/02]
Rule v. Fort Dodge Animal Health, Inc.
In plaintiff's putative class action suit against Weyth Corporation and its subsidiary, alleging that defendants had sold a heartworm medication for dogs without disclosing safety concerns revealed in initial testing and in subsequent use, a grant of defendants' motion to dismiss for failure to sate a claim is affirmed where: 1) recovery generally is not available under the warranty of merchantability where the defect that made the product unfit caused no injury to the claimant and the threat is now gone and nothing now possessed by the claimant has been lessened in value; and 2) plaintiff has suffered no economic injuries under 93A section 4.
[05/20]
Fed. Trade Comm'n v. Trudeau
District court's summary disposition, sentencing defendant to thirty days for direct criminal contempt of court for directing his fans to send emails on his behalf directly to the court during civil contempt proceedings (for violating the terms of a consent order barring him from misrepresenting the content of any of his books on TV), is vacated and remanded as the district court's summary punishment was an abuse of discretion as defendant's conduct occurred outside the judge's presence as required under Rule 42.
[05/17]
Simpson Strong-Tie Co., Inc. v. Gore
In plaintiff's action for defamation and related claims against an attorney and a law firm, arising from an advertisement placed by the defendants addressing owners of wood decks that they may have a claim against plaintiff and other manufacturers of certain galvanized screws, dismissal of the entire complaint under the anti-SLAPP statute is affirmed as plaintiff's expansive construction of the commercial speech exemption is rejected, and thus, the complaint was not exempted from the anti-SLAPP statute by section 425.1(c)(1).
[05/03]
Franklin Mint Co. v. Manatt, Phelps & Phelps, LLP
In an action for malicious prosecution against a law firm and an attorney, who had represented the executors of the estate of Diana, Princess of Wales and the trustees of The Diana, Princess of Wales Memorial Fund, arising from the law firm's suit against the company for using Princess Diana's name and image in connection with merchandise it advertised and sold, a grant of the law firm's motion for directed verdict is reversed and remanded where: 1) there was no probable cause to prosecute the false advertising claim as no reasonable attorney could find tenable the false advertising claim as it was alleged and litigated in the underlying action; and 2) there was no probable cause to prosecute the trademark dilution claim because no reasonable attorney could conclude that the claim could satisfy two fundamental, long-standing principles of trademark law.
[04/14]
PhotoMedex, Inc. v. Irwin
In an action involving Lanham Act claims for misleading advertising and California state law claims for false advertising and unfair competition, based on defendants' alleged misrepresentations regarding the release of a medical device, summary judgment for defendants is affirmed in part where, because the FDA permitted defendants to determine in the first instance whether their laser device was covered by clearance previously given to a similar device and to market their device without an affirmative statement of approval by the FDA, the Lanham Act claim by plaintiff could not proceed. However, the judgment is vacated in part where, though a forecast of future events may ordinarily be a statement of opinion upon which unfair competition claims could not be based, such a statement may be actionable if the speaker knew at the time the statement was made that it was false or did not have a good faith belief in the truth of what was said.
[04/01]
Tiffany (NJ) Inc. v. eBay Inc.
In an action by Tiffany Inc. against eBay based on sales of counterfeit Tiffany merchandise on eBay, alleging trademark infringement, false advertising, and trademark dilution, judgment for defendant is affirmed in part where: 1) a defendant may lawfully use a plaintiff's trademark where doing so is necessary to describe the plaintiff's product and does not imply a false affiliation or endorsement by the plaintiff of the defendant; 2) for contributory trademark infringement liability to lie, a service provider must have more than a general knowledge or reason to know that its service is being used to sell counterfeit goods, and some contemporary knowledge of which particular listings are infringing or will infringe in the future is necessary; and 3) there was no second mark or product at issue here to blur with or to tarnish "Tiffany." However, the judgment is vacated in part as to plaintiff's false advertising claim because the district court failed to determine whether extrinsic evidence indicates that the challenged advertisements were misleading or confusing.
[03/12]
Alexander v. Cahill
In a First Amendment challenge to attorney advertising rules issued by the New York Appellate Division barring, inter alia, testimonials from clients relating to pending matters, portrayals of judges or fictitious law firms, attention-getting techniques unrelated to attorney competence, and trade names or nicknames that imply an ability to get results, and establishing a thirty-day moratorium for targeted solicitation following a specific incident, including targeted ads on television or in other media, summary judgment order invalidating most of the content-based restrictions and upholding the thirty-day moratorium is affirmed in part where the content-based restrictions in the disputed provisions regulated commercial speech protected by the First Amendment. However, the order is reversed in part where: 1) the prohibition on advertising mentioning fictitious firms was valid because it targeted potentially misleading advertising; and 2) as to the moratorium, there was a substantial state interest in protecting the privacy and tranquility of personal injury victims and their loved ones against intrusive, unsolicited contact by lawyers.
[03/02]
Pfizer v. Sup. Ct.
In plaintiffs' action against Pfizer, the manufacturer of Listerine mouthwash, pursuant to the Unfair Competition Law (UCL) and False Advertising Law, claiming that Pfizer marketed the mouthwash in a misleading manner by representing that the use of it can replace the use of dental floss in reducing plaque and gingivitis, defendant's petition for writ of mandate seeking to overturn superior court's order certifying the class action is granted as the ruling certifying a class consisting of all persons who purchased Listerine in California during a six-month period is overbroad, and In re Tobacco II Cases, 46 Cal.4th 298 (2009), does not require a different disposition in this case.