Proskauer on Advertising Law
Proskauer on Advertising Law

Second Circuit Affirms Preliminary Injunction of “Identical” Gray Goods

The Second Circuit recently affirmed a district court’s grant of a preliminary injunction halting the alleged sale of gray-good diabetes test strips made by Abbott Laboratories under the “Freestyle” trademark.  The decision is notable because the authentic test strips were identical to the gray-good versions.

Read more here.

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Want to talk advertising? We welcome your questions, ideas, and thoughts on our posts. Email or call us at lweinstein@proskauer.com /212-969-3240 or akaplan@proskauer.com /212-969-3671. We are editors of Proskauer on Advertising Law and partners in Proskauer’s False Advertising & Trademark practice.

IntenseX False Advertising Claims Lack Power and Performance

Last month, in Kanfer v. Pharmacare US, Inc., U.S. District Judge Marilyn Huff of the Southern District of California dismissed on what were essentially puffery grounds a consumer suit styled as a class action alleging that defendant PharmaCare falsely advertised its nutritional supplement, IntenseX, as an aphrodisiac that “would improve. . .sexual power and performance.” This decision contrasts with another decision we covered two years ago in which a judge in the Central District of California held that claims for a sex enhancement pill were not mere puffery.

The IntenseX packaging at issue contained statements including “Sexual Power and Performance,” “Fast Acting!” and “designed to intensify your endurance, stamina, and sexual performance.”  PharmaCare moved for summary judgment asserting that these statements were too vague and generalized to be actionable.

The court agreed, finding that it was simply not plausible that a significant portion of the public would be misled by the vague claims on the IntenseX label.  In reaching its decision, the court emphasized that a “[p]laintiff has a claim for false advertising only to the extent the product claims are false or misleading, as opposed to merely unsubstantiated.”  The plaintiff’s own expert admitted that the “vague language” regarding the effects of IntenseX “remain[ed] scientifically undefined and therefore untestable.”  The court determined that this “untestability” presented an insurmountable hurdle to plaintiff’s advertising claims.

The court also rejected the plaintiff’s claims related to statements on the IntenseX website because the plaintiff admitted that he did not look at the IntenseX website before purchasing the product.

Judge Huff previously denied PharmaCare’s motion to dismiss the lawsuit.  Then in June, the court denied class certification finding problems with the proposed nationwide class, including difficulties with reliance, standing, statute of limitations, and damages.  Just last week, plaintiff filed a notice of appeal of the court’s latest decision to the Ninth Circuit. Watch this space for further developments.

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Want to talk advertising? We welcome your questions, ideas, and thoughts on our posts. Email or call us at lweinstein@proskauer.com /212-969-3240 or akaplan@proskauer.com /212-969-3671. We are editors of Proskauer on Advertising Law and partners in Proskauer’s False Advertising & Trademark practice.

Second Circuit Affirms Ruling that SPD Swiss Precision Diagnostics Falsely Advertised Clearblue Weeks Estimator Home Pregnancy Test and Did so Intentionally and Egregiously

In an important recent false advertising decision in a suit brought by home pregnancy test manufacturer Church & Dwight against its principal competitor SPD Swiss Precision Diagnostics, a Second Circuit panel unanimously affirmed orders by Judge Alison Nathan of the Southern District of New York, following a bench trial on liability, (i) holding that SPD labeling and other advertising for its Clearblue Advanced Pregnancy Test with Weeks Estimator (the “Weeks Estimator” or “Product”) constituted intentional and egregious false advertising in violation of the Lanham Act, and (ii) granting permanent injunctive relief that included a nationwide recall of all Weeks Estimator packaging, a prohibition on all Weeks Estimator advertising that was the subject of the complaint, and a corrective advertising campaign. Proskauer represented Church & Dwight. Continue Reading

Proskauer: Principal Sponsor of 38th Annual BAA Marketing Law Conference

On Wednesday November 9 through Friday November 11, the Association of National Advertisers and the Brand Activation Association (BAA) held their 38th annual Marketing Law Conference at the Downtown Chicago Marriott Hotel, 540 N. Michigan Avenue, Chicago, IL 60611.  Proskauer was a principal sponsor of the conference, and two of our partners – Lawrence Weinstein, the co-chair of Proskauer’s Intellectual Property Litigation Group and of our False Advertising and Trademark Practice, and Alexander Kaplan – spoke at the Conference.  This Conference is the largest advertising and marketing law conference in the country, with over 700 attendees, 65 sessions and 145 speakers.

Courtesy of Proskauer, people who registered as a result of this post received a $500 discount off the regular registration price.

Standing to Assert Injunctive Relief is Not in the Tea Leaves, Court Says

In Lanovaz v. Twinings North America, Inc., Judge Whyte of the Northern District of California recently decided that the plaintiff lacked standing to pursue injunctive relief, and granted summary judgment for defendant Twinings.  The class action alleged that Twinings tea products were misbranded under California law as “natural source[s] of antioxidants.” Continue Reading

Accurate Net Weight Disclosures May Defeat Slack-Fill Claims in California

Last April, we reported on Ebner v. Fresh, Inc., in which a Ninth Circuit panel held that the plaintiff failed to state a claim that Sugar lip balm packaging was misleading because it contained non-functional “slack-fill.” Last month, the Ninth Circuit rejected plaintiff’s petition for rehearing en banc but also amended its earlier opinion. Though largely similar, the amended opinion includes new language that may have implications for slack-fill actions going forward. Continue Reading

De-certifiably Natural – Ninth Circuit Finds “All Natural” Label May be Misleading While Upholding Class Decertification

The Ninth Circuit Court of Appeals recently reversed in part and affirmed in part a Northern District of California ruling (discussed previously, here) concerning the “All Natural Fruit” labeling on Dole’s packaged fruit products. Brazil v. Dole Packaged Foods, LLC, No. 14-17480, 2016 WL 5539863 (9th Cir. Sept. 30, 2016). The appeals court reversed the lower court’s order granting summary judgment in favor of the defendant on plaintiff’s false advertising and unfair competition claims, finding that a trier of fact could conclude that the label is misleading to a reasonable consumer. Notably, the Ninth Circuit also ruled that the district court did not err in decertifying the class where plaintiff failed to show how damages could be calculated with proof common to the class. Continue Reading

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