Category Archives: Lanham Act

Recent Lanham Act Cases

Second Circuit Affirms Preliminary Injunction of “Identical” Gray Goods

By Brendan O'Rourke, Jeff Warshafsky and Russell Kostelak on December 2, 2016 Posted in Injunctions, Lanham Act

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. *** Want to talk advertising? We welcome … Continue Reading

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 November 21, 2016 Posted in Deceptive Trade Practices, FDCA, Injunctions, Lanham Act, Primary Jurisdiction/Preemption

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

Parks’ Allegations Against “Finest” Franks Not In the “Ball Park” of False Advertising Claims

By Lawrence Weinstein, Jeff Warshafsky and Tiffany Woo on June 1, 2016 Posted in Lanham Act

On May 10, 2016, Judge Joseph F. Leeson, Jr. of the Eastern District of Pennsylvania granted summary judgment on false advertising and trademark claims in favor of defendant Tyson Foods, Inc. and a subsidiary, the makers of “Park’s Finest” frankfurters. The decision illustrates important distinctions between two causes of action—trademark infringement and false advertising—both covered … Continue Reading

Fourth Circuit Extends Section 43(a) Lanham Act Standing to Companies Not Selling Their Product or Using Their Mark in the U.S.

By Alexander Kaplan and Evelyn Pang on March 31, 2016 Posted in Lanham Act

Last week, an appellate court held that a plaintiff has standing to bring a false association and false advertising claim under Section 43(a) of the Lanham Act, even though it did not use its mark or sell its competing product in the United States. In Belmora LLC v. Bayer Consumer Care AG, a Fourth Circuit … Continue Reading

A Yarn Spun, But Advertising Not Tailored to a Lanham Act Claim

By Alexander Kaplan, Lawrence Weinstein and Lee Popkin on October 21, 2015 Posted in Deceptive Trade Practices, Lanham Act, Primary Jurisdiction/Preemption

In a recent application of the Supreme Court’s 2014 Lexmark decision on standing, the Court of Appeals for the Third Circuit held last month that a yarn retailer who alleged it was misled by its supplier into purchasing mislabeled yarn lacked standing to bring a Lanham Act false advertising claim. Knit With v. Knitting Fever, … Continue Reading

Irreparable Harm and Trademark Law Demystified! A 2015 Perspective LIVE Webcast

By Alexander Kaplan on September 17, 2015 Posted in Events and Announcements, Lanham Act

Alex Kaplan was one of three panelists speaking at the Knowledge Congress’ webcast “Irreparable Harm and Trademark Law Demystified! A 2015 Perspective LIVE Webcast” This event was scheduled for Thursday, October 1, 2015 @ 12:00pm-2:00pm ET. Complimentary passes were available for the first 30 registrants courtesy of Proskauer at https://gkc.memberclicks.net/index.php?option=com_mc&view=mc&mcid=form_199984. The event synopsis is below: … Continue Reading

Procter & Gamble Must Say Goodbye to Proposed Amended Claim against Hello, while Hello Says Goodbye to Lawsuit

By Lawrence Weinstein, Celia Cohen and John Browning on June 16, 2015 Posted in Deceptive Trade Practices, Injunctions, Labeling Claims, Lanham Act

A lawsuit between Procter & Gamble (“P&G”) and Hello Products (“Hello”) – a toothpaste start up that promotes its products as “naturally friendly” – settled last week with the entry of a stipulated injunction, but Hello might still have reason to smile. Days before the settlement, the Southern District of New York rejected P&G’s motion … Continue Reading

Tailoring the Suit: Plaintiffs File Amended Complaint in Nordstrom Rack Price-Tag False Advertising Lawsuit

By Alexander Kaplan and James Unger on May 28, 2015 Posted in Labeling Claims, Lanham Act

Nordstrom Rack has recently found itself at the center of an unwelcome suit over its labeling practices. Nordstrom Rack discloses the savings it offers customers by placing “compare at” labels on its price tags which show two prices: the “compare at” price and a lower, actual sale price. A recent class action filed in the … Continue Reading

Court’s Maine Message to Plaintiff Suing Poland Spring: You Don’t Have a Leg to Stand on

By Alexander Kaplan and Lee Popkin on April 7, 2015 Posted in Labeling Claims, Lanham Act

The District Court of Maine recently provided a reminder that – even in the post-Lexmark world of Lanham Act false advertising standing – Article III standing requirements can still impose a meaningful barrier on plaintiffs. On March 18, 2015, District of Maine Judge George Z. Singal dismissed Maine Springs, LLC’s complaint against Nestle Waters North … Continue Reading

It’s a Complete Red Haring: Court Dismisses Wide Ranging Art-Authentication Lawsuit against Keith Haring Foundation

By Lawrence Weinstein and John Browning on March 18, 2015 Posted in Lanham Act

Art is no stranger to great controversy, although the arbiters of art world disputes are usually critics and artists rather than federal judges. Nevertheless, in early March, Judge Denise Cote of the Southern District of New York was faced with a complaint accusing the Keith Haring Foundation of a range of violations – including antitrust, … Continue Reading

Nutritious and Judicious: Nutribullet Blender False Ad Claim Survives Attack from Ninjas and Phantom Reviewers

By Lawrence Weinstein, John Browning and Daniel Werb on March 4, 2015 Posted in Deceptive Trade Practices, Lanham Act, Social Media

While courts may not officially be in the business of ghostbusting, a district court in California recently offered some support to a blender manufacturer apparently haunted by a phantom reviewer. The court found that negative internet reviews posted by the shadowy “Chris W” – who is allegedly a front for a competitor – can suffice … Continue Reading

Third Circuit Irons Out “Powerful” Performance False Advertising Dispute

By Lindsey Olson, John Browning, Lawrence Weinstein and Alexander Kaplan on January 13, 2015 Posted in Injunctions, Labeling Claims, Lanham Act

The Third Circuit has rendered a notable decision with important implications for the use of fine print in advertising. The Court held that small print statements that explicitly define the terms of a more prominent superior performance claim can render that performance claim unambiguous – and thus subject to a literal falsity claim – even if … Continue Reading

Third Circuit Rejects Presumption of Irreparable Harm for Injunctive Relief under Lanham Act

By Alexander Kaplan on August 28, 2014 Posted in Injunctions, Lanham Act

Following a series of recent appellate decisions across the spectrum of intellectual property disciplines, including the fields of patent, copyright and trade secrets, the Court of Appeals for the Third Circuit has ruled that a plaintiff cannot rely on a presumption of irreparable harm in seeking preliminary injunctive relief under the Lanham Act. In Ferring … Continue Reading

What a Tangled Web We Weave, When First We Practice to Deceive: Second Circuit Holds that “Deliberate Deception” Creates Legal Presumption of Consumer Confusion and Injury in a Two-Player Market

By John Browning and Alexander Kaplan on August 4, 2014 Posted in Deceptive Trade Practices, Labeling Claims, Lanham Act

On July 29, the Second Circuit clarified its view that, in a two-player market, willfully deceptive advertising – even non-comparative advertising – creates a legal presumption of consumer confusion and injury, applicable to determination of both liability and damages. This emphatic opinion makes plain the peril that follows a finding that defendant willfully engaged in … Continue Reading

Cracking Under Pressure: “Raw” Juice Class Action down the Drain after Plaintiffs Cite Articles that Squeeze the Life out of their Complaint

By John Browning and Alexander Kaplan on July 15, 2014 Posted in Class Actions, Labeling Claims, Lanham Act

On July 2, 2014 Judge Vince Chhabria dismissed a class action alleging that Hain Celestial Group, a manufacturer of “raw” juices, misleadingly labelled and advertised its wares. This dismissal is noteworthy – and should stand as a cautionary tale – because the class plaintiffs eviscerated their own claims and pleaded themselves out of court by … Continue Reading

When Life Gives You Lemons, Give Away Toothpaste: Hello Products Turns P&G Lawsuit Into Marketing Event

By John Browning and Victoria Loughery on March 20, 2014 Posted in Injunctions, Lanham Act

Imagine this scenario: you’re a toothpaste start-up with six employees. You’re about to launch your new brand into an oral care market dominated by consumer products giants like Procter & Gamble (“P&G”) (the maker of Crest and Oral B products), and a federal judge has just enjoined you from selling or shipping 100,000 units of … Continue Reading

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