Alexander Kaplan
Subscribe to all posts by Alexander Kaplan
A recent decision out of the District of Massachusetts serves as a reminder that a court may consider even a single communication by an advertiser made directly to a consumer to be advertising under the Lanham Act, particularly where the advertiser competes in a limited market. Allscripts Healthcare v. DR/Decision Res., No. CV 19-11038-NMG, 2020 … Continue Reading
The Association of National Advertisers and the Brand Activation Association will be hosting their 41st annual Marketing Law Conference at the Marriott Marquis in San Diego, CA from November 4-6. Proskauer is a sponsor of the conference, and will be speaking on two separate panels. Lawrence Weinstein, the co-chair of Proskauer’s Intellectual Property Litigation Group and … Continue Reading
On Friday, June 28, 2019, the Supreme Court granted certiorari in Romag Fasteners, Inc. v. Fossil, Inc. to decide whether a showing of willfulness is necessary to obtain a defendant’s profits under the Lanham Act. In Romag, the plaintiff, a manufacturer of magnetic snap fasteners, sued Fossil and various retailers for, among other things, infringement … Continue Reading
Proskauer partners Lawrence Weinstein and Alexander Kaplan wrote the book – 11 chapters of it – on U.S pharmaceutical advertising law. The 2019 Chambers Global Practice Guide: Pharmaceutical Advertising is a great, curated resource for drug companies, hospitals, medical practices and other U.S. health care organizations. The guide provides insight to topics such as: FDA and … Continue Reading
Is it deceptive to label food products with the mark of the American Heart Association (“AHA”) without disclosing that the AHA was paid for use of its certification mark? This was the question raised by a putative class action lawsuit in the Northern District of New York, which largely survived dismissal on March 25, 2019. … Continue Reading
Last year, we wrote about Jessani et al v. Monini North America, a case in the Southern District of New York in which the court dismissed as a matter of law plaintiffs’ complaint alleging that Monini falsely advertised its “White Truffle Flavored Extra Virgin Olive Oil” product as containing actual white truffle. The case turned … Continue Reading
Earlier this year, we covered a decision from the District of Connecticut finding state law false advertising claims against the bottled water company Poland Spring preempted by the FDCA. Flowing from that decision is the case we are covering today: Frompovicz v. Niagara Bottling, LLC, 2018 WL 4465879 (E.D. Pa. Sept. 18, 2018).… Continue Reading
A federal court in the Eastern District of New York recently dismissed a putative class action filed against Dunkin’ Brands alleging deceptive advertising with respect to its Angus Steak & Egg Breakfast Sandwich and Angus Steak & Egg Wake-Up Wrap. Judge Carolyn Amon dismissed the claims by out-of-state plaintiffs on jurisdictional grounds, and found the … Continue Reading
Last fall, we covered the Southern District of New York’s dismissal of Board-Tech Electronic Company’s Lanham Act false advertising claim. Based on its own internal testing, Board-Tech alleged that light switches sold by its competitor, Eaton Corporation, were falsely labeled as complying with an Underwriters Laboratories (“UL”) certification standard. However, the district court found that … Continue Reading
A judge in the Western District of Wisconsin recently denied a motion for a preliminary injunction that sought to prevent a customer from criticizing the plaintiff’s products over social media. Buckeye Int’l v. Schmidt Custom Floors, 2018 WL 1960115 (W.D. Wis. Apr. 26, 2018). Plaintiff Buckeye sells floor finishing products, and defendant Schmidt is a … Continue Reading
In a recently issued decision, the Second Circuit held that a food truck could not be excluded from a New York State lunch program solely because the truck and the food it sells was branded using ethnic slurs. Wandering Dago, Inc. v. Destito et al. This case is an early example of how the Supreme … Continue Reading
In a surprising decision and split with the Seventh Circuit, the Third Circuit recently held that plaintiffs have standing to sue for unfair trade practices under the theory that a manufacturer is obligated to optimize the number of eye drop doses in a container of a fixed volume, even if there is no alleged misrepresentation … Continue Reading
On November 22, 2017, the Second Circuit in Heskiaoff v. Sling Media affirmed the dismissal of a class action complaint against Sling Media that alleged deceptive business practices in connection with Sling’s introduction of advertisements into its television streaming service. In a summary order, the panel affirmed the district court’s holding that the complaint and proposed … Continue Reading
Last week, a federal judge in Manhattan examined the intersection of false advertising and trademark infringement law in connection with the alleged misuse of a certification mark, and found the plaintiff to be entitled to neither body of law as a means to stop a competitor from advertising its products as “UL Certified.” The court … Continue Reading
The Northern District of New York recently found that Ford Motor Company’s “Built Ford Tough” slogan was non-actionable puffery, and dismissed putative false advertising class action claims brought under New York law that centered on that slogan. The case is Kommer v. Ford Motor Company.… Continue Reading
Truffles are renowned as one of the rarest delicacies in the world. Perhaps not quite as rare, but still fairly uncommon, is the dismissal with prejudice of a false advertising class action without the plaintiffs being afforded even a single opportunity to amend their complaint. We are pleased to report today on a victory that … Continue Reading
Recognizing the growing role of social media and influencers in marketing today, the Federal Trade Commission announced on April 19 that it sent more than 90 letters to social media influencers and marketing executives reminding them to disclose relationships between brands and endorsers when promoting products on social media. Although the FTC has taken action … Continue Reading
The International Trade Commission recently issued a general exclusion order barring the importation of bed sheets with falsely advertised thread counts as a remedy for Section 337 violations. The decision in In re Certain Woven Textile Fabrics and Products Containing Same demonstrates the potential reach of Section 337, which prohibits unfair practices related to the … Continue Reading
At the heart of this unique Lanham Act case is a dispute between the Episcopal Church (the “Church”) and one of its “disaffiliated” districts, the Diocese of South Carolina (“Diocese”). In 2012, led by its Bishop Mark Lawrence, the Diocese withdrew from the Church, but the Church did not recognize the withdrawal, and appointed Bishop … Continue Reading
In an interesting recent opinion, the Eleventh Circuit held that a doctor’s blog post criticizing another doctor and his clinical practice could not form the basis of a Lanham Act claim because the blog posts were not commercial advertising or promotion. This case thus involves a rare circumstance in which a communication did not qualify … Continue Reading
In December 2016, DeVry University agreed to pay $100 million to settle a lawsuit with the Federal Trade Commission (FTC) over allegations stemming from DeVry’s advertising about the employment rates and salaries of its graduates. According to the FTC press release announcing the settlement in FTC v. DeVry Educ. Group in the district court for … Continue Reading
Last month we summarized the Second Circuit’s important decision in a dispute between plaintiff-appellee Church & Dwight and its principal competitor, defendant-appellant SPD Swiss Precision Diagnostics, concerning SPD’s false advertising of its Clearblue Weeks Estimator Home Pregnancy Test. As we reported, a Second Circuit panel in September unanimously affirmed rulings by Judge Alison Nathan of … Continue Reading
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 … Continue Reading
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 … Continue Reading
Single Communication-Based False Advertising Claim Permitted to Proceed
By Lawrence Weinstein, Alexander Kaplan and Marc Palmer on Posted in Deceptive Trade Practices, Lanham Act
Proskauer in San Diego at the 41st Annual ANA/BAA Marketing Law Conference
By Lawrence Weinstein, Alexander Kaplan, Jeff Warshafsky and Jennifer Yang on Posted in Events and Announcements
SCOTUS to Decide Whether the Lanham Act Requires Proof of Willfulness for Disgorgement of Profits
By Lawrence Weinstein, Alexander Kaplan, Jeff Warshafsky and Monique Curry on Posted in Lanham Act
Chambers Pharmaceutical Advertising 2019: USA
By Lawrence Weinstein, Alexander Kaplan and Carl Mazurek on Posted in Events and Announcements, Regulatory
Suit Over Use of American Heart Association Certification Mark Maintains a Pulse
By Alexander Kaplan and Carl Mazurek on Posted in Class Actions, Deceptive Trade Practices, Labeling Claims
Second Circuit Affirms Dismissal of Truffle Kerfuffle
By Alexander Kaplan and Daniel Werb on Posted in Labeling Claims
District Court Filters Out Preempted “Spring Water” False Advertising Claim
By Alexander Kaplan and Jeff Warshafsky on Posted in Lanham Act
EDNY Sticks a Fork in Angus Steak Sandwich Class Action Complaint
By Alexander Kaplan, Daniel Werb and Carl Mazurek on Posted in Class Actions
Update: Second Circuit Affirms Dismissal of Lanham Act Claims Based on Allegedly False UL Certification
By Alexander Kaplan and Jeff Warshafsky on Posted in Lanham Act
Lanham Act Injunction Floored Where Social Media Criticisms Were Not “Commercial Advertising”
By Lawrence Weinstein, Alexander Kaplan and Evelyn Pang on Posted in Injunctions, Lanham Act
Justice (and Lunch) is Served: Second Circuit Holds that Food Truck Branded with Ethnic Slurs is Entitled to First Amendment Protection
By Alexander Kaplan and Jeff Warshafsky on Posted in First Amendment
Third Circuit Splits with the Seventh Over Standing To Sue For Alleged Inefficient Design of Eye Drop Dispenser
By Alexander Kaplan, Lawrence Weinstein and Daniel Werb on Posted in Deceptive Trade Practices
Second Circuit Dismisses Claims of Would-Be Ad-Blockers
By Alexander Kaplan, Daniel Werb and Carl Mazurek on Posted in Class Actions, Deceptive Trade Practices
Court Says “Lights Out” on UL Certification Lanham Act Claim
By Alexander Kaplan and Jeff Warshafsky on Posted in Lanham Act
Tough Puffery: Court Closes Door on Ford False Advertising Suit
By Alexander Kaplan and Tiffany Woo on Posted in Class Actions, Deceptive Trade Practices
Truffle Kerfuffle: Truffle Lawsuit Not on the Menu for Plaintiffs
By Alexander Kaplan on Posted in Labeling Claims
#SocialMedia #Endorsement #Disclosures #Sponsored (notthispost): FTC Warns Social Media Influencers and Advertisers about Failure to Disclose Relationships
By Alexander Kaplan, Jennifer Yang and Tiffany Quach on Posted in Regulatory, Social Media
Foreign Importer Hanging by a Thread, but International Trade Commission Cuts It Off
By Alexander Kaplan, Daniel Werb and Julia M. Ansanelli on Posted in Deceptive Trade Practices, Regulatory
Fourth Circuit Tells District Court Not to Abstain in False Ad Holy War
By Alexander Kaplan and Lee Popkin on Posted in Lanham Act
No Scrubs Permitted: Eleventh Circuit Affirms Blog Post Is Not Advertising Actionable Under Lanham Act
By Alexander Kaplan and Evelyn Pang on Posted in Lanham Act
FTC and DeVry University Settle False Advertising Claims for $100M
By Alexander Kaplan and Russell Kostelak on Posted in Deceptive Trade Practices, Regulatory, Uncategorized
Update on Second Circuit Ruling in Church & Dwight v. SPD Swiss Precision Diagnostics “Weeks Estimator” Home Pregnancy Test Litigation
By Alexander Kaplan and Daniel Werb on Posted in Deceptive Trade Practices, FDCA, Injunctions, Lanham Act, Primary Jurisdiction/Preemption, Uncategorized
Second Circuit Affirms Ruling that SPD Swiss Precision Diagnostics Falsely Advertised Clearblue Weeks Estimator Home Pregnancy Test and Did so Intentionally and Egregiously
By Alexander Kaplan and Daniel Werb on Posted in Deceptive Trade Practices, FDCA, Injunctions, Lanham Act, Primary Jurisdiction/Preemption
Proskauer: Principal Sponsor of 38th Annual BAA Marketing Law Conference
By Alexander Kaplan on Posted in Uncategorized
