Tag Archives: Marketing

Ninth Circuit Confirms Dr Pepper Can Stick to its “Diet”

The Ninth Circuit recently affirmed the dismissal of a putative class action alleging that defendant Dr Pepper/Seven Up, Inc. (“Dr Pepper”) violated various California consumer fraud laws by using the term “diet” in naming and marketing Diet Dr Pepper. Becerra v. Dr Pepper/Seven Up, Inc., 945 F.3d 1225 (9th Cir. 2019). Plaintiff alleged that this … Continue Reading

Seventh Circuit Remands after District Judge Makes Injunction Stickier in Light Beer Corn Syrup Dispute

By Lawrence Weinstein, Carl Mazurek and Ariella Muller on December 10, 2019 Posted in Deceptive Trade Practices, Injunctions, Labeling Claims

The Seventh Circuit has remanded a lawsuit concerning beer advertising to the district court for failure to follow required procedures in issuing a preliminary injunction – the latest development in the case’s torturous procedural history. On May 24, 2019, Judge William Conley of the Western District of Wisconsin issued a preliminary injunction banning Anheuser-Busch from … Continue Reading

Proskauer in San Diego at the 41st Annual ANA/BAA Marketing Law Conference

By Lawrence Weinstein, Alexander Kaplan, Jeff Warshafsky and Jennifer Yang on October 29, 2019 Posted in Events and Announcements

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

Chambers Pharmaceutical Advertising 2019: USA

By Lawrence Weinstein, Alexander Kaplan and Carl Mazurek on May 21, 2019 Posted in Events and Announcements, Regulatory

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

Ninth Circuit Sends Brain-Booster Claim Case Back to District Court

By Lawrence Weinstein, Jeff Warshafsky and Eric Wertheim on April 9, 2019 Posted in Class Actions, Deceptive Trade Practices

After Ninth Circuit review, it remains to be seen whether a nutritional supplement maker can claim that ginkgo biloba leaf extract and vinpocetine supplements improve “alertness,” “mental clarity, and memory” in the face of contradictory scientific studies. In Korolshteyn v. Costco Wholesale, No. 17-56435 (2019), the Ninth Circuit reversed a district court order granting summary judgment in favor … Continue Reading

San Francisco City Ordinance Takes a Hard Hit in Ninth Circuit Soft Drink Lawsuit

By Lawrence Weinstein, Carl Mazurek and Monique Curry on February 7, 2019 Posted in First Amendment, Regulatory

Can an en banc decision of a federal appellate court be controversial even when every single active judge of that court agrees with the outcome? The answer is emphatically yes, as confirmed by the Ninth Circuit’s January 31, 2019 en banc decision in American Beverage Ass’n et al. v. City & County of San Francisco, … Continue Reading

SCOTUS to Decide If Courts Must Defer to the FCC’s Interpretation of “Unsolicited Advertisements” under the TCPA

By Lawrence Weinstein, Jeff Warshafsky and Monique Curry on February 4, 2019 Posted in Regulatory

On November 13, 2018, the Supreme Court agreed to consider the amount of deference a federal court is required to give the Federal Communications Commission in determining what constitutes an unsolicited advertisement within the meaning of the Telephone Consumer Protection Act (TCPA). PDR Network v. Carlton & Harris, No. 17-1705. The case is scheduled for … Continue Reading

Kimberly-Clark Unable to Flush Wet Wipes Case

By Lawrence Weinstein, Jeff Warshafsky and Aliza Hassine on January 28, 2019 Posted in Class Actions, Deceptive Trade Practices, Labeling Claims

On December 10, 2018, the Supreme Court denied certiorari in Kimberly-Clark Corp, v. Davidson, No. 18-304 (2018), in which Kimberly-Clark sought to overturn a controversial Ninth Circuit decision allowing a plaintiff in a false advertising case to seek injunctive relief on behalf of an alleged consumer class notwithstanding that plaintiff’s complaint acknowledged she was aware … Continue Reading

$15 Million False Ad Verdict Boosts Damages In Probiotic IP Dispute

By Lawrence Weinstein, Daniel Werb and Russell Kostelak on December 21, 2018 Posted in Lanham Act

On November 20, 2018, a years-long dispute before Judge Theodore Chuang in the District of Maryland over probiotics culminated in a gut-wrenching $18 million jury verdict against defendant pharmaceutical companies. The case is De Simone v. VSL Pharmaceuticals, Inc. et al., No. 8:15-cv-01356. The dispute involved numerous claims and counterclaims, including both a claim and a … Continue Reading

Can Inflating Jury Verdicts and Settlements Injure More than Just Your Reputation? Kansas Law Firm Sues Competitor For False Advertising

By Lawrence Weinstein, Jeff Warshafsky and Sara Schlafstein on July 27, 2017 Posted in Lanham Act

It’s not every day that a law firm sues a competing firm for false advertising. Earlier this month, however, a Wichita, Kansas personal injury law firm did just that. Brave Law Firm sued rival firm Truck Accident Lawyer’s Group and allegedly related entities in the U.S. District Court for the District of Kansas, alleging violations … Continue Reading

Cricket Wireless’s Bid to Enforce Arbitration Clause Against Customers Met with Mediocre Reception

By Lawrence Weinstein and Jennifer Yang on December 14, 2015 Posted in Class Actions

On November 3, 2015, Judge Alsup of the Northern District of California denied Cricket Wireless’s motion to enforce an arbitration clause against customers who say they never saw or agreed to the clause. Plaintiffs allege that Cricket falsely advertised “UNLIMITED 4G/LTE services throughout the United States” when the network was capable of providing that coverage … Continue Reading

Procera AVH Marketers Can Forget About Claiming to Reverse Memory Loss

By Lawrence Weinstein and Sarah Sullivan on July 30, 2015 Posted in Deceptive Trade Practices, Regulatory

It turns out that there is not a magic pill capable of reversing the effects of aging on the human brain, including memory loss, or at least not one we can remember right now. The FTC recently reminded the marketers of Procera AVH, a dietary supplement that allegedly combats memory loss and cognitive decline, of … Continue Reading

Maker’s Marketing: Bourbon Distiller Racks up “Handmade” False Advertising Victory

By Lawrence Weinstein and John Browning on May 20, 2015 Posted in Class Actions, Labeling Claims

In a decision that will interest distillers and hipster connoisseurs of artisanal beverages alike, a district court in the Northern District of Florida has decided that Maker’s Mark can describe its whiskey as “handmade” despite the fact that it is produced in industrial quantities to serve the national market. Accordingly, the court refused to allow … 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

False Advertising Suit Concerning Department of Defense Standards Misfires

By Lawrence Weinstein and James Unger on March 5, 2015 Posted in Deceptive Trade Practices

In a case that teaches important lessons about the burden of proving an advertisement false at trial, Judge Ronald Lew of the Central District of California held that Elkay Plastics Company was not liable for allegedly false statements that its StratoGrey line of polyethylene products meets military specifications. In 2012 Caltex Plastics sued Elkay arguing … 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

Proskauer and our platform provider LexBlog each use cookies to personalize content and ads, to provide social media features and to analyze traffic. Each of us also share information about your use of our site with our social media, advertising and analytics partners. If you are happy for us to store these cookies on your device please click 'Accept Cookies.' For more information, please see here and here.