Rebecca Tushnet's 43(B)log

PediaSure "growth" claims might communicate height gain, but price premium theory fails

2026-06-08T13:03:54.247-04:00

Noriega v. Abbott Labs., 2026 WL 1601501, No. 23 Civ. 4014 (PAE) (S.D.N.Y. Jun. 4, 2026)

Conventional wisdom is that certification is the ballgame for consumer class actions, but it might be empirically mistaken. This case is an example where there’s plenty more litigation ahead. Noriega alleged that the packaging and marketing of PediaSure Grow & Gain misled consumers when it claimed to be “Clinically Proven to Help Kids Grow” in violation of New York General Business Law (“GBL”) §§ 349 and 350.

The court denied summary judgment to Abbott and resolved a bunch of evidentiary objections.

There’s a disclaimer on the label: an asterisk, dagger, or other note of the form: “Clinically Proven† to Help Kids Grow.” The disclaimer has at various times read: “Studied in children at risk for malnutrition”; “Studied in children at risk for malnutrition, 2 servings per day,” or “Studied in children with and/or at risk for undernutrition, 2 servings per day.” It appeared in different colors, sometimes set against a background of the same color, and other times against a contrasting background.

The label also shows a cartoon giraffe wearing sunglasses, next to tick marks that resemble a ruler. Under the PediaSure name, the label states, “Grow & Gain,” and below that, “With Immune Support.” he label contains circles touting a product attribute, such as “27 Vitamins & Minerals,” “7g Protein,” and “#1 Pediatrician Recommended Brand.”

Earlier versions displayed an image of a lion. And instead of the challenged statement, the label read, “Helps Kids Grow.” At least 2 TV ads also used the challenged statement, including a “worried mom commercial” depicting a child who is shorter than the children next to him, and who stands on his tiptoes to appear taller. The voice of a mother states: “Before PediaSure, I was concerned that he was behind in growth.” She states that her child’s pediatrician told her to try PediaSure, and that “it’s clinically proven to help kids grow.” The commercial displays the word, “GROWTH,” above an image of a child standing next to tick marks. A second ad depicts a child standing between two taller children, who states that his mother was “concerned about my growth,” as the commercial depicts a mother measuring the child’s height against a doorframe. The child states that his mother tried PediaSure because it is “clinically proven to help kids grow.”

The PediaSure product page of Abbott’s website lists six published studies, and Abbott completed data collection in another study in late 2024, after the filing of this lawsuit. Whereas Abbott’s earlier studies had largely been conducted on children outside of the United States (e.g., the Philippines, Taiwan, Pakistan and Peru), the new study, AL-48, studied the effects of PediaSure in children in the United States.

Plaintiff’s experts: First there was marketing expert Dr. Gita Johar, whose report assessed how consumers would understand the challenged statement. Her methodology: review academic literature related to consumer marketing claims, and whether and when consumers can understand disclosures that purport to modify or limit such claims; review the Complaint and PediaSure labels and television commercials; then assess, in light of the academic literature, how target consumers would process the text and imagery on the PediaSure bottle, whether consumers would notice and understand the footnote disclaimer, and what reasonable consumers are likely to believe about PediaSure.

She opined that the PediaSure label would lead consumers to believe that the product is clinically proven to help kids grow tall and that the footnote disclaimer is “unlikely to be noticed, read, [or] understood.” She also opined that this was materially misleading, as clinical proof was a “key benefit” of the marketing.

This opinion was admissible even though Johar didn’t conduct empirical research or rely on case-specific data collection. Although a specific survey would have helped, Dr. Johar’s sources and methodology were reliable for these “uncomplicated” conclusions. Likewise, considering Abbott’s internal marketing materials might have helped, but only to fortify “her most central, and unsurprising, conclusion: that PediaSure’s packaging leads consumers to believe the product is clinically proven to help kids grow in height.” With extensive experience in consumer product marketing, a lack of specific expertise in children’s nutrition drinks didn’t matter.

Her testimony would help the jury because she wasn’t setting out her personal beliefs, as a consumer, about the meaning of the challenged statement on the label but rather her opinion, “as a marketing professor, based on her experience and research, about how a reasonable consumer would view and process the challenged statement in the context of PediaSure’s packaging.”

The court also denied the motion to preclude Dr. Daniel Hoffman’s expert report on whether Abbott’s studies supply clinical proof that PediaSure promotes height growth. He’s a professor in the Department of Nutritional Sciences at Rutgers University whose expertise includes “[s]tunting and growth retardation,” and “[e]nergy metabolism and body composition.” Id. He has published journal articles and presented on topics related to children’s nutrition and growth. He opined that Abbott ignored its internal claims substantiation guidance manual that addresses health benefit claims, the evidence necessary to substantiate such claims, and the claims development process. He further opined that Abbott improperly applied “inapposite studies from homogenous populations in developing countries” to children in the United States, failing to conduct “bridging studies” that enable results from one population to be translated to another.

He also reviewed FTC communications admonishing Abbott about its practice of using studies from developing countries to support marketing claims directed to U.S. consumers and internal Abbott communications that criticized Abbott’s studies, and depositions in which Abbott employees echoed those concerns.

The heart of his report analyzed the quality of Abbott’s studies, concluding that they “do not clinically prove or show that PediaSure helps children grow.” This heart was admissible, though other aspects of his testimony were inadmissible, including testimony about Abbott’s internal manual and whether Abbott complied with its own rules; about Abbott’s compliance with FTC health claims guidance; and how a reasonable consumer would interpret the challenged statement.

Finally, Dr. Ingersoll’s expert report claimed that the challenged statement had a price premium. The court excluded the testimony because he didn’t specifically test Noriega’s theory of liability: the claim that PediaSure helps kids grow in height. He also did not test the disclaimer or imagery on the PediaSure label.

The label’s references to growth “can also—or alternatively—be read to encompass other forms of growth (e.g., weight, body composition, and/or muscular development),” and he didn’t test height specifically. “Nor did it test the features which Noriega claims would make a consumer more likely to understand the challenged statement as referring to height growth (the giraffe, tick marks, and ‘Grow & Gain’ label). And it did not test the disclaimer that Abbott claims contextualized the challenged statement.”

The court commented that “[i]t would not have been difficult to design a conjoint survey to test this representation. In cases in which a label was susceptible of multiple meanings, surveys have tested the premium traceable to the meaning the plaintiff claimed was false or misleading.”

In addition, the disclaimer should have been included, as proven by Noriega’s own testimony that she construed the challenged statement to mean there was “scientific proof that this product can actually make a child grow in height,” and that such proof entailed examining thousands of children in the United States who had consumed the supplement for “a year or two” and “grew more than what they should have.” If she’d read the disclaimer, it might have changed her assumptions and her willingness to pay. “The challenged statement unavoidably includes a footnote (indicated by a dagger, asterisk, paragraph symbol, or section symbol, depending on the packaging) that contains the disclaimer. To be sure, there is no assurance that any particular purchaser read the footnote—and conceivably a study could have taken into account the incidence of purchasers who reviewed the footnote relative to those who overlooked or disregarded it.” But there was no explanation for its omission from the survey, suggesting “an impermissibly result-driven methodology.” Noriega could argue at trial that the disclaimer was too small to read and too confusingly worded. “But that justification, which is absent from Dr. Ingersoll’s report, does not support Dr. Ingersoll’s excluding the disclaimer from the survey and failing to engage with it at all in his report…. By omitting the disclaimer based on its purported ‘inadequacy,’ Dr. Ingersoll assumed the conclusion that a conjoint survey is meant to prove.”

Noriega argued that including the disclaimer in a conjoint survey would have improperly elevated it in importance, causing “focalism bias.” But conjoint surveys can address that, for example by showing one half of respondents the disclaimer, and the other half the statement without it. “Beyond that, there presumably were ways—independent of a conjoint survey—to test Dr. Ingersoll’s premise that consumers would have overlooked or not understood the footnote disclaimer. Dr. Ingersoll’s untested assertion to this effect does not bespeak rigorous methodology.”

Abbott’s materiality witness Dr. Kivetz is a marketing professor at Columbia Business School. In his survey, the test group was shown a 360-degree interactive image of PediaSure with the challenged statement and the cartoon giraffe with tick marks (the product as it appeared in stores). The control group was also shown an image of PediaSure, but without the challenged statement and the tick marks on the giraffe. Respondents were then asked how likely they would be to buy the product; if they didn’t say “don’t know,” they were asked what made them answer the first question as they did; and asked about “[a]ny other reason or reasons.” Then all respondents were informed about the typical price range for a package of six bottles of a pediatric nutrition drink ($7 to $17), and asked to indicate the highest price they would be willing to pay for the product that they had been shown.

Kivetz concluded that consumers’ purchase intentions were similar across the test and control groups, in that 88.7% of test group participants and 90.4% of control group participants answered that they definitely or probably would buy the PediaSure product that they were shown. He also found that “the vast majority” of the reasons respondents in the test group provided for purchasing PediaSure did not relate to the challenged statement or height growth. He reported that “only 1.9% of participants” in the test group gave a purchase explanation that could refer to the challenged statement, and “[n]ot a single test group participant” mentioned height. In the control group, no respondents provided, as a reason against purchasing PediaSure, that the product is not clinically proven or does not help with height growth. Likewise, the average willingness to pay for test group respondents was $12.94, compared to $12.49 for control group respondents.

Noriega’s criticisms were not so strong as to render this testimony inadmissible. This study was a between-group study; in a within-group study, respondents are shown multiple products and asked which they prefer. Noriega argued that within-group studies “should almost always” be used to assess materiality, but between-group studies have been used before in the false advertising context. And speaking of focalism bias, within-group studies would have it.

Although more questions could have been asked, it did more than ask for a top-of-mind response: it asked consumers why they were definitely/probably likely or unlikely to buy the product, and instructed respondents to “be specific and include details.” One part of his opinion, saying that the survey he conducted is “routinely used in academic, industry, and litigation settings,” and also citing cases that accepted his consumer surveys and found that they “conclusively showed that the challenged claims were not material,” was inadmissible.

Abbott’s “clinically proven” expert Dr. Heyman, a professor in the Department of Pediatrics at UCSF, also offered admissible testimony that there was “ample clinical support for a claim that PediaSure helps kids grow, including in both height and weight” based on an in-depth review of Abbott’s studies. He also admissibly opined that two studies, which Noriega contended disproved that PediaSure has height growth benefits, “do not undermine or contradict” clinical support for the challenged statement. The court excluded his opinion that Noriega’s grandson grew in height and weight while consuming PediaSure, and that the grandson was not harmed by his consumption of it. The court also part of his testimony that depended on a study that was not relevant because it was completed after the time period on which Noriega’s claims are based (and after the proposed class period).

Once that was done, Noriega survived Abbott’s motion for summary judgment. Along with the expert testimony, there was other relevant evidence that the height message was communicated. A rational juror “could find that PediaSure’s packaging, viewed as a whole, communicates that the product helps children grow taller.” Though the wording was unspecific as to the type of growth,

the imagery alongside it supplies a strong basis, to say the least, on which a reasonable consumer could read Abbott to make a representation about height growth. The central image on the bottle is of a cartoon giraffe—the animal well-known as the tallest of all mammals. The giraffe appears next to vertical tick marks resembling a ruler that climb to the level of the giraffe’s head. There is no comparable horizontal imagery. And the words “Grow & Gain” appear in large font below the brand name. These features could readily support a consumer’s conclusion that the word “grow” in the challenged statement refers to height growth, with the word “gain” referring to weight gain.

The same was true of the commercials, which focused on children shorter than the children around them. The “worried mom” ad displayed the word “growth” above an image of a child standing alongside vertical tick marks; and, in the final scene, shows the child (who has begun drinking PediaSure) reaching up to erase a classroom white board. The “basketball commercial” ad showed a child standing between two taller children. The child states that he has “got a lot to look up to” and the commercial depicts the mother measuring the child’s height against a doorframe.

A jury could also find that Abbott records and employee deposition testimony support the conclusion that a reasonable consumer would take away from PediaSure’s packaging and marketing that it promotes height growth. A 2015 slide deck, which discusses how the giraffe concept performed in a packaging study, includes these quotes from respondents: “Measuring tape image makes it clear this product helps with growth,” and “The giraffe is cool and he’s an example of what the product does for growing.” Abbott’s brand director of PediaSure also testified that Abbott’s marketing team sought to “include height within the definition [of growth] to better define the segments of growth.”

Likewise, there were genuine issues of fact on the truth of the height claims. A “rational juror here could find that the deficiencies identified by Dr. Hoffman are so basic and devastating that Abbott’s studies cannot credibly be claimed to constitute clinical proof of the challenged statement.” That juror could agree that establishing that PediaSure promotes height growth in a malnourished child in a developing country “says absolutely nothing about whether it does the same for a healthy New York City child with a sound diet.” “The Court is unpersuaded by Abbott’s suggestion that the nominal existence of a study, even one that could be found wholly inapposite to the proposition at hand, inherently defeats a challenge to a claim of clinical proof.”

A rational jury could also find that the footnote disclaimer here was ineffective, relying either on Dr. Johar’s testimony or by “examining the packaging for him or herself,” noting that “the challenged statement and disclaimer are on opposite sides of the giraffe and that the challenged statement is larger and more prominent than the disclaimer,” and/or finding that the disclaimer didn’t address height specifically or explain the implications of the study feature (“studied in children at risk of malnutrition”) that it briefly discloses.

Invoking the Lanham Act standard, “Abbott suggests that, because the challenged statement is impliedly (rather than literally) false, Noriega is required to come forward with extrinsic evidence that the challenged statement would mislead consumers.” This isn’t a Lanham Act case, and “GBL §§ 349 and 350 do not have an extrinsic evidence requirement.” [Conceptually, this difference is hard to defend since the core concept, deceptiveness, is the same for consumers and competitors, both of whom are only harmed when consumers are deceived, but the real problem is the Lanham Act survey requirement so I’m certainly not saddened by the court refusing to port it over.] Given the giraffe and the ruler, this wasn’t a case where a jury would need extrinsic evidence to determine what message was received.

And there was a material disputed issue on materiality, including Dr. Johar’s report. Abbott’s internal documents also included an online survey of more than 500 mothers, which tested the statements that made respondents most likely to purchase PediaSure; the challenged statement ranked third out of 13 options. A 2024 marketing presentation stated that, in 2019, “height households had significant buy rate growth,” and that the fourth most popular reason consumers purchased PediaSure was that to “help child grow.” Abbott’s documents also included statements that 51% of respondents want to buy products that “help my child grow in height” and that 20% of respondents give children PediaSure to help “grow in height.” [This may well be why we shouldn’t give much weight to anybody’s surveys on materiality or what message was communicated—the fact that Abbott was easily able to figure out a methodology that would give it the opposite result when it had a very strong interest in so “showing” suggests either that Abbott’s marketing department is very bad at its one job or that, for business decision-making purposes, the claim is material.] Abbott weakly argued that its internal records didn’t “literally” show that height was a reason for purchase, but they certainly tended to make that conclusion more likely.

Kivetz’s immateriality study, while admissible, was not dispositive given the other admissible evidence.

What about injury? There was sufficient evidence to survive summary judgment on one theory of injury: a benefit-of-the-bargain theory. Noriega testified that $3.25—the cost she claims to have paid per bottle—is “a lot to pay for something,” and that she understood PediaSure to cost more money on account of its capacity to improve height. She testified that she believed that she was “paying more” for the prospect of height benefits and that she would not have bought PediaSure had the challenged statement not been on the label. This could show detrimental reliance, but not on a price premium theory.

Good thing statutory damages are available!

6th Circuit approves of using (at least) same similarity standard for dilution as for confusion

2026-06-08T12:54:57.188-04:00

Scotts Co. v. Procter & Gamble Co., 2026 WL 1601797, No. 25-3555 (6^th Cir. Jun. 4, 2026)

Discussion of trade dress opinion here. False advertising claim here. The district court didn’t abuse its discretion in denying a preliminary injunction against P&G on the claims that P&G’s weed-killer product Spruce infringes on and dilutes Scotts’s Miracle-Gro trade dress.

Spruce

Scotts defined its claimed common-law trade dress as (1) A green and yellow color combination; (2) With each color presented as a separate horizontal band and the top color taking up a smaller ratio than the bottom color; (3) With the two bands sharing a common border that runs horizontally along the package; (4) With a straight line dividing the two colored bands; and (5) A circular horizontally centered graphic element.

Miracle Gro examples

Approximately one-third of Scotts’s Miracle-Gro products, by revenue, are “specialty products” that come in different packaging. And a number of third-party products in the lawncare space, some of which are “widely sold in the lawn-and-garden marketplace,” and at times “shelved right next to” Miracle-Gro product, have some overlaps.

third parties

On appeal, Scotts objected to three of the district court’s factor analyses: (1) mark strength, (2) mark similarity, and (3) relatedness of goods. The big three!

Strength: the district court weighed this “at least somewhat in Scotts’ favor” because it found that the trade dress had substantial commercial strength but less conceptual strength. Scotts argued that substantial commercial strength should be sufficient to make the factor weigh entirely in Scotts’s favor. No! Strength depends on the interplay of conceptual and commercial strength. Even though Scotts has invested “substantial effort and large sums of money over an extended period of time” in promoting the trade dress, “there’s nothing particularly distinct about using green and yellow for packaging in the lawn care industry.” Extensive third party use of similar marks limited the conceptual strength of the mark, reducing its strength for purposes of this factor. [We can say—but I’m not sure any court has outright—that a mark can be both very strong and very narrow. American Airlines is highly recognizable, but it’s pretty easy to use a mark that is both heavily overlapping (using “American” or “Airlines” or even both plus a geographic modifier) and not confusing.]

Similarity of marks: Scotts that the district court erred as a matter of law by “rel[ying] on a legally improper side-by-side comparison of the packages in the courtroom,” and that it made a “clearly erroneous” factual finding that the Miracle-Gro trade dress always uses the same ratio of green and yellow.

While the Sixth Circuit “do[es] not approach trade dress claims by parsing minute differences between products,” “that does not mean that actually comparing the packaging is inappropriate.” Indeed, that’s the best practice. The district court identified the appropriate legal standard: “[W]hether a given mark would confuse the public when viewed alone, in order to account for the possibility that sufficiently similar marks may confuse consumers who do not have both marks before them but who may have a general, vague, or even hazy impression or recollection of the other party’s mark.” The district court “appropriately” cited a variety of individual visual differences to show that the “visual differences add up to a highly dissimilar overall visual impression between the Miracle-Gro Trade Dress and the Spruce packaging,” and correctly identified that the products were typically not shown side by side in retail stores.

The ratio finding was also not clearly erroneous. Scotts’s registration defines a specific one-third green to two-thirds yellow color combination. And while Scotts claimed a broader common-law trade dress, its expert testified that “our Miracle-Gro trade dress says typically one-third green on top, two-thirds yellow on the bottom,” mentioning the “one-third/two-third” ratio repeatedly as, in the court’s words, “a key factor that distinguishes Miracle-Gro from a multitude of other green and yellow products.”

The court also noted Scotts’ attempt to make its trade dress a nose of wax. “[S]ome of the products that Scotts cites as using other ratios also completely lack other elements that Scotts identified as part of its broader common-law trade dress …. Scotts can’t have its cake and eat it too; either the yellow-and-green combination is distinct from the many other green and yellow products on the market because of its specific ratio, or it isn’t nearly as distinct as Scotts claims.”

Relatedness of the goods: Because Spruce is a weed killer and there is no equivalent product in the Miracle-Gro product line, the district court reasoned that the products are “only somewhat related” because the products are not “directly competitive.” This too was not an abuse of discretion. The Sixth Circuit sorts this factor into three categories: “(1) direct competition of services, in which case confusion is likely if the marks are sufficiently similar; (2) services are somewhat related but not competitive, so that likelihood of confusion may or may not result depending on other factors; and (3) services are totally unrelated, in which case confusion is unlikely.” This was category (2) because both were lawn and garden products, but did not directly compete.

Dilution: Scotts argued that the district court erred in holding that its finding that the Miracle-Gro trade dress and Spruce’s packaging are “highly dissimilar” also meant that Scotts wasn’t likely to succeed on its dilution claim. The Sixth Circuit has held that “[t]he degree of similarity required for a dilution claim must be greater than that which is required to show likelihood of confusion” because “[t]he purpose of anti-dilution laws is to provide a narrow remedy when the similarity between two marks is great enough that even a noncompeting, nonconfusing use is harmful to the senior user.”

Scotts argued that this precedent had to be rejected after the TDRA. It noted that both the 9^th and 2^nd Circuits have held that there’s no requirement of substantial similarity for dilution purposes, though I think they’re both wrong. [The underlying logic is that the TDRA gives a multifactor test for blurring referencing the “degree” of similarity as well as the “degree” of other factors, so it must be possible to dilute without a high degree of similarity. I think this is wrong as a matter of grammar—the statute simply doesn’t say where to draw the line. Moreover, the other factors are essentially all about fame (with the arguable partial exceptions of intent/actual association), which by definition will be satisfied if you get to the multi-factor test because you’ve shown ownership of a famous mark. So if we want continuity with the other “degree” factors, “very high” should be required for the factor to favor the plaintiff.]

According to Scotts, the district court should therefore have done more balancing, which would favor it because of its claimed fame. P&G pointed out that the definition of dilution is dependent on some amount of similarity, and that the Ninth Circuit also held that while “a particular degree of similarity is not a threshold, similarity is the necessary predicate for dilution analysis.” “The statutory text itself does not seem to mandate that the district court specifically weigh all six factors; it only states courts ‘may’ consider ‘all relevant factors’ and offers six examples.”

The court of appeals didn’t resolve the issue; even assuming that the similarity requirement is no longer heightened relative to a likelihood-of-confusion analysis, there was no abuse of discretion in finding that the “high level of dissimilarity” found in the infringement analysis also ended the dilution inquiry. [This next quote shows why the 2nd and 9th Circuits are wrong: if it’s not a humorous understatement, it’s a sign that something has gone very wrong.] “Since dilution definitionally requires similarity and some similarity is ‘the necessary predicate’ for dilution analysis, a finding of a complete lack of similarity should strongly influence the dilution analysis.”

Even if the dilution similarity standard isn’t more rigorous than the infringement similarity standard, it was not error to hold it to the infringement similarity standard—thus, the court of appeals strongly implies, the dilution similarity standard can’t be less rigorous than that for confusion.

Some thoughts: If dilution were a less rigorous standard, how would we calibrate using the other factors of the test (“test”)? Perhaps we could say that no one can get closer than other slightly-similar marks or designs on the market. This would be particularly beneficial to makers of allegedly famous product designs or even packaging, since they’re the ones particularly likely to want to constrain competitors. This seems to me to be unrelated to any evidence we could gather about diminished distinctiveness—because even if we have a theory about preserving conceptual space around a mark, the fact of the matter is that conceptual space will shift based on other features, not just similarity. Dida’s Café would probably not make you think about Adidas, but Dida’s Sneakers could well do so. So identifying the comparators “nearest to” the famous mark that are perceptually somewhat similar and that therefore define the scope of its protection against dilution will be conceptually and practically difficult. Why would we compound our troubles by requiring less than compelling similarity, which offers us a way to define the scope of protection that is at least consistent with the idea of drawing firm boundaries around things that are property?

Promoting Progress part 2 at AU WCL

2026-06-05T14:26:47.192-04:00

Framing the Public Interest Agenda - Beyond the Narrative of “Content vs. Tech”

Framing Digital Consumer Rights

US experience is v different from rest of world—want to support the int’l discussion keeping that in mind. US libraries are ubiquitous, 122,000 in US; int’lly, often they’re more gov’t focused. Most tech companies are globally minded—come up with Content ID, etc. to go through all jurisdictions. So int’l issues affect consumers here.

Consumer Bill of Rights was drafted some time ago—Zoe Lofgren & Boucher. Dept of Commerce also has White/Green papers. Places to start?

Dark patterns: example of non-© issue that is about being free from manipulation—consumer bill of rights shouldn’t just focus on ©. A bunch of things can undermine consumers’ digital rights. What is “information justice”? Defensive/we don’t like big tech/mechanisms of resistance like protest v. affirmative visions of social life.

Google is still the only company supporting policy work in © space where Anthropic & OpenAI & everyone else is benefiting from it.

Bill of rights as a foundational concept that could also provide int’l models. Framing human rights. Biden admin’s AI Bill of Rights could also be a source of inspiration. Privacy/consumer rights provisions built into any AI settlement.

Current democratic crisis is so broad that little corners of © are not going to be compelling; the temptation is to think that the public interest is whatever doesn’t serve the interests of big tech.

Participatory democracy as a structuring idea: need agency as citizens—access to info, quality of info ecosystem, ability to communicate w/each other not always mediated by algorithms.

Copyright in a quixotic place: enormous obstacle to many things even as content owners complain that there’s too much competition. The importance of © in this era for creativity is completely different from what it used to be and that gets lost.

There aren’t many functional ways to regulate content online. Copyright is asked to be a jobs program, privacy law, antidefamation law, to carry all kinds of water b/c it’s there and people can see they’re not getting any help to solve digital problems. Congress also realizes this for better or worse. Anticircumvention exceptions are an example of realizing they had to make it someone else’s problem or nothing would happen.

Lots of nonprofit & public benefit & prosocial uses of tech but they tend to be invisible to average person (except Wikipedia). Everyone’s yelling at ChatGPT, but integrating AI into hospitals for info collation/troubleshooting insurance is making huge strides, not for diagnosis but for better management—internal only. Fear of backlash is one reason for silence.

There is a difference b/t consumer advocacy and public interest advocacy—they don’t overlap as much today as they did 10 years ago though there’s still a ton of overlap. Music streaming as an example: consumers benefit from Spotify but the music ecosystem is tanking as a result of it. Tech/public interest coalition broke down, and rhetorically public interest messaging was tied too closely to “you need fair use so you can do this fun thing on the internet.” Internet is surveillance, AI in your job, etc. We need to pivot to address bigger questions and our positions’ importance to them. Antitrust moment: is it the hammer that we need to turn everything into a nail? Room for discussion about antitrust/© interface as policy (not whether having 3 record labels is technically a “monopoly”). RIAA speaks as if for “creators” but they’re representing the intermediaries; musicians are independent contractors who are very hard to organize for a variety of reasons.

The right to share with my friends; the right to tinker; the right to transform; the right to repair. The cost of access/price discrimination is also relevant & the huge wealth transfer from publishers & consumers to intermediaries—terms and nature of access. Consumer as creator also matters. Consumers’ interests in reaching audiences and interacting w/one another. Consider also FTC/deceptive conduct restrictions/state consumer protection for shaping production & consumption of content. Are the terms of the exchange unfair or deceptive? Antitrust has the potential to expand again. But Google search case is depressing in that regard b/c it shows the limits of antitrust remedies.

Product liability/failure to warn/plaintiffs’ bar as potential allies? Some of the tort litigation is brought by copyright ps’ lawyers. Folks in this room use the internet very differently from one another and from the ways that many politically engaged young people do. Tiktok: you can train your algorithm away from not just topics but tones. As a result, when you think about losing your ability to lend a CD to a friend—teenagers don’t think about that any more; they just tell you to go to YT or Spotify. So picking that as a battleground won’t resonate w/a lot of younger people.

We’re better at ID’ing copyright problems or how problems are being caused behind the scenes even as we argue that © isn’t the solution to all your problems.

If we can’t figure out how to understand or mobilize people b/c we don’t know what they’re doing, that feels like the authoritarians have one—at some level, we need a common culture. That’s about journalism, ©, and many other things—seems like an order of operations problem.

Control of Information and Knowledge - Responding to Technical, Business Structure, Regulation, Lawfare, Contractual and Other Means Beyond Copyright

Style claims: people think they’re supporting individual artists but style protection would let Disney claim to control modern Polynesian art (Moana). How do we talk about why and how it’s really important to not expand ownership of ideas & info even if it feels pleasant to think of it as a weapon against big tech.

1202 claims: huge statutory damage assertions, even if people aren’t © owners. The play is extortion, not stopping AI. 1201 cases are challenging web scraping as violation of 1201. Big threat to viability of open internet.

Music: Controlled private domain—public domain music that is still hard to access through score controls. Draws attention to market power. Publishers will only rent scores. Similarly warps selection of scores by operas, ballets, etc.

Protecting the Roles of Public Institutions - Libraries, Archives, Museums

Provocation: consumer interests are losers in this policy space. Access to information is practically more broad, often freely or for relatively low costs. Outside of right to repair, where there is more appeal, it’s pointless to talk about consumer interests bc it’s so much better now than it used to be. Disappearance of 1984 from Kindle is an exception that proves the rule.

Preservation: physical items are easier legally speaking; licensed access means someone else’s server is in charge. But maybe the solution is ultimately not © or exceptions but instead money: finding mechanisms to work with industries. Films—would like to believe the industry wants preservation and could accept preservation on a voluntary basis. It would take a boatload of money though. Let the Academy run the archive to reassure industry that it’s an archive not to be used for piracy. We want our analog facility, but digital levels of access; we may have to accept tradeoffs. What if we can’t save everything? Not everything can/should be digitized, and even if it is, preservation institutions are brittle. The copy is the point: do we need shadow libraries? Something else? Technical solution to allow controls for reassurance? [Have big content owners ever been reassured enough to allow permanent copies? Maybe w/ music downloads b/c that’s no longer a big consumption vector.]

Telecom conceives of libraries as fundamental to broadband access; should also frame them in © as fundamental to access to culture.

Monopsony problem w/Overdrive means that more money can’t solve the problem—they’ll just soak up as much money as is available.

What is the Public Interest in Copyright Law in Relation to Other Consumer Interests - Recognizing Accretive Surveillance Harms

[personal matters took me out of the room] Anonymity/ability to be pseudonymous online. Europe has more experience balancing incommensurable human rights. Publishers would love to have all the data in the hopes of being able to monetize it somehow, but it seems to be turning into a panopticon w/o even that. Amazon doesn’t give publishers their data. Data collection is a reflex but may not have as much economic value as hoped—that might be a point where we could find common cause. Publishers often still operate like 19^th century businesses. Simon & Schuster merger documents: they just guess whether a book is going to be popular.

But big businesses are hungry: Elsevier is bidding on ICE contracts. Tying back to ©: Hachette is a case in point. Are we going to allow libraries without the strictures imposed by publisher agreements copy & lend works while protecting users’ privacy? We should insist on the public benefits of privacy. Compare to invasive level of detail demanded for 1201 exceptions.

We don’t have enough privacy-© overlap in scholarship. We have to recognize the various other interests to address & name. And remember that we have to deal w/privacy overrides in contracts—that’s why ownership is not the answer for privacy. AI is an opportunity to bring privacy folks into consultation.

It’s worse when people have to pay twice—both for access to content and then with their data. It should be one or the other: content for free, in return for sitting through ads, not double-dipping. People hate data brokers; they don’t like their info being used in completely unrestrained ways. Related to labor issues: people who are surveilled and subject to secret algorithms that can change their pay/kick them off a gig work app with no recourse to them: that’s a privacy issue!

Promoting Progress: 50 Years of the Copyright Act from the Perspective of the Public Interest

2026-06-05T09:38:12.201-04:00

AU Washington College of Law, Program on Information Justice & Intellectual Property

Chatham House rules.

Opening discussion: The Role of the Public Interest in Framing the Copyright Act of 1976

AI is sucking all the air out of © discussion about other topics. It doesn’t have to be the predominant question of © and the public interest. 76 Act was a point where libraries and educational institutions realized they had to advocate for the public interest, but it was basically them negotiating against publishers; DMCA was enacted w/ a broader coalition of public interest organizations. Now: parents, consumer groups pushing back against platforms, and now plaintiffs’ bar finding chinks in armor w/product liability suits. Question: is social media having an “Unsafe at any speed” moment? Is this a resurgence of digital consumer rights, or something else? If it is, can we imagine © as a part of this, e.g. in a digital consumer’s bill of rights? Should YT have to have due process before a third strike nukes your account? Doesn’t seem like Congress will change © law comprehensively any time soon; we’ll be living with the 76 Act for a while.

Enactment of 76 Act: keep in mind the excitement of that time, not b/c there was necessarily so much love for the new law or experience of the new law as a loss, but a collective idea that one was about to be presented with a new tool that was fundamentally different from what had come before—part of the first generation of lawyers who first applied the law (and then of course immediately began to complain about it). Present in the classroom and in practice for decades. Ben Kaplan’s advice to students: occasionally at least, one working in the field ought to represent clients who aren’t copyright owners; classes of such people with copyright-relevant interests did develop (called alleged infringers in the cases) but were not always visible at the time.

Authorship and Copyrightable Subject Matter - From the Sweat of the Brow Doctrine to Originality

Sweat of the Brow doctrine wouldn’t die—the directory cases were where the money was! BigLaw of the time was litigating directory cases b/c knowledge-based works were valuable. They all involved Lockean labor theory type claims. Connecting to AI: as people start to make AI output claims, they feel like twists on sweat of the brow—which was always a reward for capital investment into someone else’s labor—we shouldn’t reward the labor of operating capital-intensive machinery any more than we would do that.

We need a term to capture the AI output that would satisfy the originality standard if created by a human—a work, but not a work of authorship—to name that aspect of something that might also have human authorship in it. The human contribution: not really a derivative work; how do we conceive of the collective expression of the human/AI output? If mixed into interdependent work that would otherwise count as joint authorship, seems like we just have a single author—but have we really dealt with that issue (we don’t even know whether there can be joint authorship with someone who is an employee/making a WFH)? Will people find state law alternatives for protection that aren’t preempted? There are already attempts to create state protection.

AI on the Lot conference in LA: working lawyers’ perspectives in Hollywood: lots of lip service to need to center human creativity in AI generated work and the need to document it. See Jacob Noti-Victor’s current project on deciding infringement cases after AI. Using human actors & generated backgrounds: human-generated performances keep that package protected. There was some doubt about fully AI-generated animation.

Clients want to see prompts before they’re used to see if they are intentionally or unintentionally going to infringe. They also want indemnity for the studio.

Registration: how does this scale? How do I have to document & disclose my AI use? Is the Office going to be able to meaningfully review it anyway? Is this an empty exercise? Critterz: AI-generated short film from April 2023; used text prompts to create visual characters & background design. Was registered: Script was human, voices were human, editing was human, and humans animated the characters once designed, which included human performance capture. So registration isn’t surprising, but how did it do that?

General advice: infuse as much human involvement & control if possible at every step of creation and document those touchpoints—scripts; document how humans influenced, modified, selected/arranged/combined outputs. Instead of just text prompting, use outputs other than text: have a sketch fed into a multimodal engine; make text prompts as detailed as possible in case those will confer protection. Keep the original outputs confidential, including in your filing with the Office.

3 practical Qs: (1) The Office demands you disclaim © in AI generated stuff, but they may be wrong that you don’t have a © in that. Waiting on Theater De Opera Spatial case: fully AI-generated artwork based on a text prompt; challenging denial of registration. (2) how much specificity does the Office actually need in registration? Detailed audit trail (keep for litigation purposes but might not need to expose). (3) how do you keep people from copying unprotected bits? If you vague it up, people won’t be able to be sure what they can freely copy.

No pushback from Office for Critterz by saying: (1) “to the extent not copyrightable” andgeneral description of images, etc. generated by AI, with same disclaimer; (2) no detailed audit trail, and Office didn’t even publish their general 2-page description document with the registration, which doesn’t say much/can scale; (3) if you keep disclosures vague and specific outputs confidential, people can’t copy any part of the work w/o risking copying the human element. Great for © owner but calls into question whether

Is this right for registration? Burrow-Giles said: they made these choices so the whole thing is ©able.

Single Piece of American Cheese: the documentation of the creation was extensive, which led to a finding that the selection & arrangement was ©able even though the visuals were AI-generated. It may matter who you are: represented by BigLaw, perhaps you can vague it up more readily. Or if you signal that you are following Office policy.

What kind of market do you imagine? If you’re worried about wholesale copying, all you need is a Burrow-Giles ©. It’s only when you care about copying bits that this kind of copying really matters.

Sure, the “whole thing” is copyrighted, but not everything in Burrow-Giles was ©able—Oscar Wilde’s appearance was not copyrightable. A copy of the photo would be an infringement, but not another photo of Wilde.

If that’s what you believe, what have we accomplished with the Office’s policies where registrants don’t really tell you enough to decide what you can use?

Might become even harder to ascertain what’s protected than it already was. (Relevant: Jeanne Fromer’s work on scope and claiming by exemplar.) You can look at a photo and decide what’s ©able more easily (though not always!).

Costs of nailing scope down are generally not worth bearing at the registration stage, but what if AI changes that? Alternative discussed by Noti-Victor: Markman hearing analogy, so claim scope costs are not borne at registration stage but are still required early in infringement claim.

Multiple page-long prompts may be used for a single shot, including what lens was “used.”

The issue is that the output may not be copyrightable at all, even though there are always uncopyrightable elements in a work; we used to do this reasoning only in the context of infringement, not at the front end. Doing it at the front end is not stable/scalable b/c Feist says the tiniest bit of creativity is enough to make a work original.

Issue isn’t doctrine but economic power. Human creators/actors want creativity not b/c of © but b/c of labor power. Restraints should come from the outside.

Single Piece of American Cheese: wanted to prove concept of selection, coordination and arrangement resulting in © for people who didn’t have (other) artistic skills. That sounds nice, but consider the power of the owners of the tools. Adobe v. open source: nothing in our copyright doctrine speaks to that.

Fair Use and the Constitutional Purpose of Copyright

Start w/ assignment given to students: is the quote “use the force, Luke” substantially similar to Star Wars, the movie from which it comes? Half the students, reading the standard cases, say it is, b/c it’s recognizable and not de minimis. That is, when they just read the cases, they conclude: Fair use has to handle everything if there’s a recognizable quote.

This is a bad idea, and contributes to the challenges we’re facing in a world where a lot of the litigated fair use victories are big data, not uses of individual works. Sometimes defending big data means denigrating acts of choosing a specific work to react to: 9th Circuit said in one of its Perfect 10 cases: “a search engine may be more transformative than a parody because a search engine provides an entirely new use for the original work, while a parody typically has the same entertainment purpose as the original work.” Robust fair use requires multiple types, not crapping on one type for the benefit of another.

Big data cases also highlight the distinction b/t straight reproductive copying and alteration: also important to avoid tilt towards the former on purpose-based grounds, which would mean that fair use was mainly for quotations in a different context and then once in a while for parody. The kind of analysis needed to produce ASTM v. Public Resource gave us a good result, but also heavily favors pure reproduction. One thesis: Warhol’s language has negative effects on copying that alters.

Relatedly: we face a risk of substituting fair use for substantial similarity analysis, which did great damage in Warhol. Example: concurrences in the Sedlik cases suggesting that b/c copying in fact was so obvious, there was obviously substantial similarity, leaving only fair use as a limit on use of photographic references. Asking about fair use first without establishing substantial similarity enlarges the scope of what courts consider protectable, to the detriment of future creators who might not do so well on the first and fourth factors.

Also, the way courts use factor three in small-amount cases—favoring fair use because the defendant took almost nothing protectable—sits poorly with the rest of the structure of fair use analysis.

Factor three is generally a calibrating factor: it assesses whether the defendant took more than was reasonable in light of the purpose of the use. That’s why full copies can be fair use, when a transformative purpose requires a full copy. Using fair use as a substitute for putting a lower bound on substantial similarity, by contrast, is purpose-independent, suggesting that taking only a little bit is a virtue in itself.

Third and relatedly, although there are justified predictable subclasses of fair use cases, the only justification for a small-amount subclass is to avoid the need to put a lower bound on substantial similarity. That has value to judges understandably looking for shortcuts, or for Justices looking to put together a majority (looking at you, Google v. Oracle), but it can’t supply overmuch in the way of predictability, and it has serious costs for the defendants who are forced to litigate the extra issues required for a fair use analysis, including expensive economic discovery.

Fourth, and potentially of greatest significance, Warhol may put defendants who didn’t take much, if anything, that was protectable at a significant disadvantage going forward. Because the Supreme Court suggested that competing uses were not transformative even if they had different meanings or impacts, and because defendants who copy a lot of unprotectable material tend to be using it in ways that compete with the plaintiff (or at least with the plaintiff’s licensees), such defendants may be particularly likely to have the highly important first fair use factor weighed against them. For the same reasons, the market harm factor will do the same—and courts often say that those are more important factors than two and three, where what I’m calling small-copying defendants do well. Rentmeester is a good example of a case where a similar-in-unprotectable-ways photo would fare badly on factors one and four—both photos of Michael Jordan depicted him as a star player of almost unearthly talent, and both would be fine illustrations for articles about him.

This problem is particularly acute in the context of litigation over training generative AI. Recently, the Copyright Office and one court have offered a new theory of “copyright dilution”: works produced by generative AI might cause market harm by flooding the market for certain genres. But this only looks like cognizable harm by skipping over the question of substantial similarity: unless the AI-generated works are themselves infringing because they contain substantial amounts of protectable expression, they should not (and I think constitutionally cannot) count as inflicting cognizable harm. Quickly skipping past substantial similarity reduces infringement to a question of but-for causation. Even if you don’t like generative AI—and I don’t—that is the wrong standard. Shows how fair use and scope of protection need to be considered separately to do their modern jobs.

Is public interest really a fifth factor, rather than part of the fourth factor? Where does it really fit in?

Another issue: We have to figure out how to deal w/use by use analysis without chopping everything into too-small bits. Use by use analysis kind of makes sense, but we’re in early days figuring it out.

We the public can & should fit into all four factors, & Breyer actually did that in GvO.

Rhetoric of copying and morality that infuses every conversation: by the time we get to fair use, we’re using words of morality, which can lead to twisted or troublesome logic. We end up with analysis that starts with copying in fact & moves directly to fair use, or even skips over copying in fact. You can’t demand that the public do the inquiries in order as you can w/students—how do we shape the conversation about the moral valence of copying and fairness?

One concern is how much weight is being put on fair use—all of AI, much of computer programming, etc. Part of that is the dysfunctionality of Congress. And 76 Act doesn’t say what the infringement test is. Fair use is at least a test! Worries of judges in GvO: protectability would be across the board so it was more comfortable to use fair use instead which is case by case. Wild because protectability in GvO was also entirely case by case—nobody else was going to copy those 11,000 lines of code. Substantial similarity is also supposed to be case by case!

Structure is just more comfortable to many lawyers/students for analysis for fair use than seemingly unstructured analysis for substantial similarity (certainly no structure for infringement present in statute). Questions of law can be raised—that’s why we have more SCt decisions on fair use after the 76 Act, b/c now they can say they’re interpreting a statute.

Sedlik is an opportunity to think about clarifying infringement/substantial similarity. Commit to all the limits on ©! Not just fair use. Opportunity for a Leval-type theory for theorizing substantial similarity to reinterpret the test.

People are obsessed with copying in fact. We have a bench of people who like to think they’re originalists, but as we’re talking about the public interest being part of the fair use factors, that is a way to put the constitutional concept of “progress” into the factors. (Unless the public interest is market aggregation.)

Worst offender: Sotomayor, the most experienced © Justice, not an originalist, but substantial similarity analysis in 2d Circuit in Warhol is laughable and she just buys it.

Do you try substantial similarity and fair use together in one trial? Give the jury a special verdict form? Try substantial similarity first for PF infringement before getting to fair use, or let jury hear both together? Leval says: from now on, fair use facts should be decided through special verdict; jury answers those questions; judge makes ultimate determination.

AI makes some GvO/big data case features look regrettable in hindsight: (1) ignoring commercial v. noncommercial use. Puts us in position now where courts have to bless fair use by the most heavily capitalized industries on the planet who could clearly pay for what they want; if they find no fair use, that will prejudice the ability of noncommercial, public interest, open source AI efforts they might want to promote. (2) Google Books turned on copy protections at end of product, but open source AI means you aren’t the one deploying it or people can take them off even if you do deploy copy protections.

Model building bears more weight in fair use than in the real world—people are mad about outputs, but think the only thing they can actually control is model building, so they focus on that. They don’t think outputs are controllable. © has statutory damages and enforcement mechanisms so it seems like the point of control.

Judges resort to fair use to avoid big swings that set precedent they’re scared of: GvO and ASTM where they don’t want to say the standards aren’t copyrightable. But fair use can also be used to wave away bad consequences of protection decisions in Eldred and Golan. Sedlik: J Wardlaw was shaking with rage at the concept that the jury found the works not substantially similar. Courts will appeal to fair use if they broaden substantial similarity—allowing them to answer doctrinal questions w/o attending to public interest which is shoved into fair use.

First Sale – From Ownership to Licensing

People used to have book & music collections, and now that’s not how we access pop culture, educational materials, and everything else. Questions about the common law basis. Single recovery rule has public interest consequences that have been underexplored. Origins: early 20^th c antitrust/competition cases, but SCt reiterated single recovery rule in Kirtsaeng, Lexmark—you get to recoup your costs through the first sale. You don’t get to make a sale over and over again. That’s the single recovery rule. Now honored in the breach through licensing despite SCt unanimity.

Recommendation: don’t use exhaustion and first sale interchangeably: whether a country decides to allow national exhaustion is different from first sale—Kirtsaeng was the first case to confirm that we have exhaustion as well.

Many countries don’t have broad exhaustion even internally—many countries have lending rights and we (mostly) don’t, as a clear choice. Heavy users don’t pay more for their copies as a conscious decision. But that’s destroyed by licensing, which requires libraries to pay substantially more than everyone else, putting users at mercy of platforms. For most users, that’s not horrible. For preservation, it’s horrible. At the margin it does allow platform or © owner to control ongoing uses.

Provocation: First sale is dead; get over it.

It matters that this is a wealth transfer to specific entities. Amazon is not principally passing on the revenues to authors to support authorship and creativity. It’s yet another wealth transfer to the platforms like Elsevier.

Libby/Overdrive is owned by private equity. So much profit being sucked out of this—makes publishers look good!

Publishers do get a share of a lot of this. Not all publishers are equal. Overdrive has over 95% of the public library, 774 million/year before sale to KKR. Publishers have always really disliked secondary markets like used book stores. Contract preemption: US is unique when it comes to contract preemption limiting exhaustion, creating a situation in which “first sale is dead” is a real possibility. But what is the technical solution for digital copies? Internet Archive case: if you scan something it’s a new copy. Without contract preemption there’d still be other contract doctrines that caused problems; this is like printing money for publishers/platforms so they want to defend it even with the huge problems for the public interest.

Restraints on alienation of chattels: those doctrines should be resurrected b/c of their public benefits. Lots of problems also stem from the contracts being really bad. 6-7 streaming platforms distribute 90% of video content; 5 ebook distributors; etc. Consumer protection and antitrust are important parts of the solution.

We need to be able to reuse our things: first sale is essential to conservation.

Digital first sale is going to be tough to achieve, but right to repair movement is a positive development.

©-specific policy interest relates to the public interest: access to knowledge. That is a double-edged sword when it comes to exhaustion & first sale. European reactions to Kirtsaeng/shift from ownership to access model: concern over disappearance of content. E.g., Infinity Train. There are advantages to high quantity uses paying more. What happened to prices in Thailand after Kirtsaeng? (One possible cite: Zhang, Z. and Feng, J, “Price of Identical Product with Gray Market Sales: An Analytical Model and Empirical Analysis,” Information Systems Research, 28(2), pp. 397-412, June 2017.) Global price discrimination might promote cheaper access to knowledge—exhaustion v. first sale.

109: every cobbled-together exception to allow Blockbuster, but not renting software. CleanFlicks at the bottom. All Bobbs-Merrill said was that if the legislature wants to modify the common law it has to do so explicitly. There’s no constitutional right; the legislature could erase access or © for any of these things. Book publishers would love to see first sale go away, b/c that’s the path for every AI company to build its corpus in training its model.

Details matter: do we want compulsory licenses at a set rate? The publisher decides whether a library gets the book? Does money go to the author? 109 could be the home of a new rule that says “you can’t scan a book for AI”—it would fit there. Or it could be the home of a rule that allowed that.

Consider anti-criticism licenses—you can use it as long as you don’t criticize it. That’s also a power issue.

Specific Exceptions: Lessons Learned

Questions about preservation, classroom use, other subjects of best practices—almost always come down to fair use because the specific exceptions haven’t been powerful for public institutions. Trying to craft specific exceptions will probably fail: too narrow b/c of negotiations with stakeholders; technology will change substantially by the time it makes it into actual law.

Copyright law is working great for libraries, but they don’t get to live in © space any more, they live in contract land. © policy choices reflect the public interest and we should be able to live in that land! 110(1) is amazing, 110(2) is not: when it aligns with your incentives and intuitions as an educator, as 110(1) does, an exception can be amazing. When it doesn’t, as with 110(2), it is not. We have a model for doing a good job: general, values-driven as in 110(1); horsetrading means it doesn’t work in 110(2).

Everyone is terrified of asking Congress to fix 110 b/c we know they won’t. What do you do? The only alternative is “fair use for everything,” with its own disadvantages. Think very carefully about long term implications of opportunities to enact change: university counsels can’t rely on 110(2). 108: not litigated; just used to apply savings clause to confirm that fair use is different. Maybe libraries are using it a lot and doing a bunch of things that don’t trigger litigation—that’s likely what’s happening.

Maybe fair use helps confidence that 108 means what libraries want it to mean. Jon Band’s Gravitational Pull paper—unintended effect could be to shade how we understand fair use.

As time went on and fair use proved expansive, librarians’ interpretations of 108 probably became broader/put a fair use gloss on 108. Compared to 110(1), which is clear, short, and understandable, and has developed its own fair use gloss—to allow distance education, doing what 110(2) doesn’t allow. The question for us: how did 110(1) get so good, even compared to 108?

Patry wrote that 110(1) came from language from an agreement b/t publishers & teachers, whereas 108 was trench warfare over 10 years. 110(1) was already existing practice of teachers; it was late-breaking insertion into the statute but not controversial. Tech constraints: they imagined teachers using mimeo machine in the principal’s office. But also: under the 1909 Act, public performance right was only for profit; when they decided to lift that restriction, they also decided to grandfather in existing practices—education, church, agricultural fairs, etc.

Don’t lose track of the damages part. You can think 108 means whatever you want and there’s essentially no litigation b/c you can’t get statutory damages against a librarian acting in good faith. Institutions need a substantive hook to point to say they’re good © citizens, and they need liability protection. Maybe that’s the formula: give an exception plus a statutory damages safe harbor. Libraries also are comprised of people who want to do the right thing.

Limitations and exceptions may contribute to courts thinking “if no exception then infringement” as we’re seeing in TM. Savings clause in 108 is really important. At oral argument in Hachette rights holders argued that 108 meant there was no need for fair use, but the cases have been very hostile.

But there are cases saying that “de minimis isn’t a listed defense so there’s no de minimis exception”—if it’s written too narrowly to be effective and has the compounding effect of broadening rights, that’s worse. [Like the statutory DMCA 1201 exceptions!]

University counsel might not be © experts; they like being able to look at a provision that says “notwithstanding the above, this isn’t an infringement.”

Penalties: Remedies, Secondary Liability, and their Consequences

Today’s Hikma borrows Grokster to really require active steps/intent to induce—the worry of loosening inducement is something the Court is signaling against. Gershwin no longer stands for material contribution + knowledge—it stands for inducement. Not causation!

What about vicarious liability? We’ll see more efforts to expand that to bypass Cox. But there’s also a case to be made for implications for vicarious liability in Cox. Basic takeaway from this and Hikma: they want to see purposeful, culpable conduct. Vicarious liability has been expanded past employer/employee, where lack of sufficient supervision was your problem/culpable conduct. So too w/independent contractors. But when you’re talking about entities that are farther apart, it will/should be harder to expand vicarious liability.

Also going to be pressure on volitional conduct: something that used to be considered indirect becomes direct, then you won’t have to worry about knowledge, intent, or control.

But if the courts take seriously that nothing in the statute gives rise to that broad liability, then there will be a narrowing. Wish it would have implications for 1202! Framing it as Twiqbal: when you just make general assertions in the complaint, that’s not enough.

eBay worked to limit injunctions—fewer sought, fewer granted. Libraries & educational institutions don’t need to worry about profit disgorgement; elsewhere, courts really need to think about disgorgement as a tool of equity, to be adjusted down where appropriate. Likewise, 103(a) should have equitable limits; otherwise Goldsmith might own the (c) to the Warhol images and the estate would have no (c) interest.

Good that SCt accepted cert in Cox on willfulness/statutory damages—they are clearly interested in the issue.

We should also be citing, quoting, relying on the Restatement of Copyright, which says that statutory damages should approximate actual damages.

Are class actions appropriate in © cases? Could we make more progress on that front?

Texaco was the key there: 80 journal publishers as a plaintiff class.

Build on what broke Google Books class certfication—similarity of interests or lack thereof.

Is there room for apology as a remedy or other equitable remedies unrelated to the economic conditions ordinarily associated with ©?

Here’s an argument: In our textualist era: there isn’t any contributory infringement provision in the © statute. Therefore Congress never authorized statutory damages for contributory infringement and they don’t apply.

Secondary liability in the context of TRIPS: Didn’t say anything about secondary liability, so countries have maximal flexibility on whether to adopt it.

If “to authorize” is the scope of secondary liability it will shrink in scope, which would be fine!

Second Annual Aspiring Free Speech Scholars Workshop

2026-06-04T15:34:44.250-04:00

jointly sponsored by the Sandra Day O’Connor College of Law (ASU)
and the Hoover Institution (Stanford University)

Because of a technical problem, any submissions before June 4, 2026 were lost; please resubmit (or submit for the first time) at the new URL listed below, https://tinyurl.com/aspiring-free-speech-scholars

Are you a law student, judicial law clerk, lawyer, or beginning academic hoping to publish a journal article on free speech law? Would you like the opportunity to get advice about your draft from leading free speech scholars?

If so, send us your draft by Sunday, August 16, 2026. (This should still be a draft article, not an article that’s already published or expected to be published within six months.) We plan to select the submissions that we think are particularly promising, and invite their authors to a workshop where they can present their papers and get helpful feedback on them. The workshop will be Saturday, October 24, 2026 (with dinner the night before) at the Sandra Day O’Connor College of Law in Phoenix. We will inform the selected authors by Tuesday, September 8, 2026.

We have funds to pay for transportation and lodging for the selected authors’ trips. Eligibility is limited to people who have so far published three or fewer law-related journal articles.

We also plan to officially recognize zero to three of the top articles among those we review. If the authors wish, they can also have their articles reviewed for publication in the Journal of Free Speech Law (http://JournalOfFreeSpeechLaw.org), presumably after they revise the articles in light of the workshop feedback.

If you’re interested, please submit your draft at http://tinyurl.com/aspiring-free-speech-scholars (Google logon required). Please single-space, and format the article nicely, so we can more easily read it.

Please do not include your name or law school affiliation in the document or document filename, and please do not include an author’s note thanking your advisors and others. Please make your filename be the title of your article (or some recognizable subset of the article title). We want to review the article drafts without knowing the authors’ identities.

If you have questions, please check http://tinyurl.com/aspiring-free-speech-faq; if your question isn’t answered there, please e-mail volokh@stanford.edu.

Many thanks to the Stanton Foundation for its generous support.

* * *

James Weinstein, Dan Cracchiolo Chair in Constitutional Law and Professor of Law, Sandra Day O’Connor College of Law, Arizona State University

Eugene Volokh, Thomas M. Siebel Senior Fellow, Hoover Institution (Stanford University), and Gary T. Schwartz Distinguished Professor of Law Emeritus, UCLA School of Law

court allows TM and false advertising claims against "toxic backlink" SEO disparagement campaign (SEM, for minimization?)

2026-06-04T10:34:37.930-04:00

Montway LLC v. Nexus AT LLC, 2026 WL 1552185, No. 25 C 13100, No. 26 C 1056 (N.D. Ill. Jun. 2, 2026)

Although the UCL unfair competition claims got kicked out, federal trademark and false advertising claims survive in this dispute between automotive transportation brokers. They provide “automotive transportation services to a broad range of clients including individual car owners, auto dealerships, financial institutions (for vehicle repossession), rental car companies, original equipment manufacturers, and others.” Plaintiffs Montway and SGT have registered various trademarks related to their services, including “MONTWAY AUTO TRANSPORT” and “SGT AUTO TRANSPORT.”

Plaintiffs alleged that their SEO spending meant that, e.g., “Montway.com” is one of the first websites that Google returns when a user searches for “Montway,” “Montway Auto Transport,” “best car shipping company,” or “how to ship a car to another state.” Allegedly, SEO considers “trustworthiness.” Google allegedly measures website “trustworthiness” by measuring the quality of “backlinks,” which occur when links for a given website appear on other websites.

Nexus allegedly launched a toxic-backlink campaign to damage the companies by adding links to “Montway.com,” “sgtautotransport.com,” and other Montway and SGT subdomains on untrustworthy websites. Another toxic-backlinking technique to degrade SEO allegedly involves using misleading “anchor text” (the clickable text that appears on screen when text is hyperlinked) such as keywords related to online gambling and “adult content.”

Some of the toxic backlinks Nexus created allegedly used “sgtautotransport.com” as anchor text on websites like pokerstarcasinolives.com, or anchor text such as “online casino,” “hiding illegal funds,” “CBD products online,” “illegal border crossing,” “illegal drug distribution,” “corrupt influence,” “drug paraphernalia” and “heroin is a drug” leading to Montway or SGT’s websites. This creates the false impression that plaintiffs are connected to and/or affiliated with such products or services.

Montway sued for Lanham Act false advertising, trademark infringement, and tarnishment, as well as violation of Illinois consumer protection law and California’s UCL.

False advertising: The allegedly false statements were in the “anchor text,” and they were plausibly literally false, e.g., anchor text stating “sgtautotransport.com” but connecting to a website like “pokerstarcasinolives.com,” or “online casino,” “hiding illegal funds,” “CBD products online,” and other similar statements connecting to SGT’s website. If anchor text states that “a link will lead to a website offering certain goods or services—car transport services or a variety of unsavory goods and services—but that the link actually takes the consumer to a different destination,” that’s false.

Plus, the allegations were that the anchor text created the impression that their services were affiliated with the spam websites as well as the unsavory products and services promoted on those websites, misleading consumers about the quality and type of services that Montway and SGT offer.

Was this commercial advertising or promotion? The Seventh Circuit doesn’t use Gordon & Breach, but instead applies the Lanham Act only to “traditional commercial advertising or promotion methods.” [Like… backlinks? I guess, because:] “Based on plaintiffs’ allegations, Nexus’s alleged toxic backlink campaign involves an innovation in communications media that is covered by the Lanham Act. Montway and SGT allege that they have made significant investments in online advertising, search engine optimization, and affiliate marketing to ensure they continue to reach prospective customers,” with which defendants interfered. [But that indicates that plaintiffs are involved in commercial advertising, not that defendants are. This is one of the early mistakes courts made about domain names.] The court agreed that “Nexus’s alleged toxic backlinking campaigns are comparable to negative advertising. … The alleged toxic backlinks serve the same goals as negative advertisements: to denigrate a competitor.” [That might work under Gordon & Breach, but I can’t see why that makes them comparable to traditional advertising and promotion methods.]

Plaintiffs also sufficiently alleged materiality or injury because the toxic backlinks and included anchor text allegedly “created the impression that their services are affiliated with untrustworthy websites and/or unsavory goods and services. According to Montway and SGT, this ultimately led to fewer consumers reaching their websites.”

[I really wonder what Google would say about all of this.]

Trademark infringement: Fact-intensive so no motion to dismiss for you despite defendant’s argument about the high degree of care used by consumers of the relevant services. The court doesn’t require the confusion to be about the source of defendants’ goods or services, but confusion about whether plaintiffs’ “services are affiliated with untrustworthy, spam-filled websites and/or the service advertised therein, rather than with the trustworthy services normally associated with the SGT Mark.” That doesn’t actually seem like trademark confusion to me, even if it’s disparaging false advertising.

The theory of harm here is purely algorithmic. In fact, the theory works without any allegations that any consumers ever hover over any of these links in order to see the allegedly disparaging connections. This is perhaps what a rump unfair competition common-law cause of action is for, but it’s not what trademark law is for and the Supreme Court has been pretty clear that the Lanham Act doesn’t cover all forms of unfair competition.

Tarnishment: Appallingly, the court finds fame sufficiently alleged because of allegations that Montway’s mark “has been in continuous use since at least July 2007” and, based on that use, the mark “has acquired consumer recognition, positive reputation, and extensive goodwill with consumers,” SGT’s mark has been in use since 2014 and, based on that use, SGT’s mark “has acquired consumer recognition, positive reputation, and extensive goodwill with consumers,” and they’ve spent hundreds of thousands of dollars each year to reach prospective consumers. No citation to the standard set forth in the statute or any case law. If a human being ever looked at the links—a big if—the negative associations qualify for the ordinary meaning of tarnishment, I suppose.

Illinois consumer protection: Fine, given what’s gone before.

California UCL: Montway and SGT argued that they suffered an injury in California because Google is headquartered in California. That’s not where they suffered injury, though. They didn’t allege “any specific instance where a potential customer in California was impacted by Nexus’s actions.”

Instagram disparagement by alleged competitor isn't commercial speech

2026-06-04T10:33:01.987-04:00

Farina v. Omari, No. 24-11098 (SDW) (AME), 2026 WL 1552256 (D.N.J. Jun. 2, 2026)

The court grants a motion to dismiss in this defamation/false advertising claim centered on online videos.

“Farina is a consultant in the aesthetic surgery industry and operates through her business Beauty Brokers. Defendant is also a plastic surgery and aesthetics consultant.” Defendants made several defamatory statements on Instagram questioning plaintiffs’ credentials and alleging that they received kickbacks from surgeons. Omari also streamed live on Instagram, allegedly stating that “Farina is a bad person and bad businesswoman; that she scams a lot of people; and had a surgical procedure but never paid for it.” The complaint asserted (1) defamation; (2) false light; (3) tortious interference with prospective business relations; (4) false advertising/unfair competition; and (5) trade libel.

Defamation: Failed for want of defamatory character/being opinion. The allegedly defamatory claims: 1. “[Farina] is just a dental hygienist.” 2. “[Farina] gets paid on both ends and allegedly gets kickbacks.” 3. “Basically, people now pay $1,000 to have a consult with her so she can suggest one of these surgeons from “Beauty Brokers’ Little Black Book of surgeons.” 4. “Lots of surgeons I know have STORIES, and tons of my followers have sent in stories of [Farina] being super rude, canceling all the time and being late, not helpful, and having a hard time getting their money back if she messes up or doesn’t provide the services promised.” 5. “[Farina] is a bad person/bad businesswoman.” 6. “She scams a lot of people and had a surgical procedure that she owed money for but never paid it.”

Since Farina previously worked as a dental hygienist, “just a dental hygienist” was substantially true, and the complaint didn’t explain why highlighting Farina’s background as a dental hygienist subjects Farina “to contempt or ridicule,” and “harms [her] reputation by lowering the community’s estimation of [her] or by deterring others from wanting to associate or deal with [her].”

“[G]ets paid on both ends” and “allegedly gets kickbacks”: The gist of the first part was substantially true since plaintiffs admitted to a previous membership program where surgeons paid a membership fee to join their referral network, and to experimenting with a fee-splitting arrangement involving surgeons in their referral network and receiving gifts from surgeons. Although “kickbacks” could be read to accuse plaintiffs of a criminal offense or other illicit behavior, in context it referred to payments from surgeons for referrals and not to any criminal or illegal conduct.

The “pay $1,000 to have a consult with her so she can suggest one of these surgeons from Beauty Brokers’ Little Black Book of surgeons” didn’t rise to the level of defamation. And the final statements were opinion, especially given the context: the statements “were delivered by a social media influencer on Instagram,” and Instagram is a place “where a reasonable [viewer] will expect to find many more opinions than facts,” thus “strongly signal[ing] to readers that the posts merely reflect the publisher’s opinions.”

False light failed for failure to plead actual malice. Trade libel failed for the same reasons as defamation did. Tortious interference failed because plaintiffs failed to allege the existence of any lost prospective economic benefit that they would have retained “but for” the alleged interference. Attributing the sixteen customers who cancelled their appointments in the three weeks following the first post to defendant was speculative even though plaintiffs alleged that they normally only get one cancellation per week.

Lanham Act false advertising: Not commercial speech, even assuming the parties were competitors. “Plaintiffs argue for an overly broad definition of commercial speech, essentially stating that any criticism from a purported competitor must be commercial speech.” But “the alleged misleading statements do not advocate for the reader to purchase a particular product or service over another. In fact, none of the alleged statements explicitly or implicitly refer to the alleged similar service offered by Defendant.” [don’t love this!]

New Jersey’s Uniform Public Expression Protection Act (its anti-SLAPP law) applied in federal court “to the extent that it affords fees, costs, and expenses to a prevailing movant who successfully dismisses a SLAPP suit under Federal Rule 12 or Federal Rule 56.” “For UPEPA to apply, the challenged speech must pertain to an area of public concern.” Farina was a limited purpose public figure, and the challenged statements related to a particular public controversy within the cosmetic surgery industry. UPEPA doesn’t apply to a cause of action asserted “against a person primarily engaged in the business of selling or leasing goods or services if the cause of action arises out of a communication related to the person’s sale or lease of the goods or services.” But the challenged statements weren’t commercial speech and don’t refer to any services offered by defendant. Thus, the defendant could get her fees, costs, and expenses.

Reading list: Deception wins at the Federal Circuit

2026-06-02T11:42:42.398-04:00

"A doctrine that was meant to deter deception thus rewards its most sophisticated form: technically accurate fragments presented as universal facts." This student article shows how the Federal Circuit allowed two layers of deceptive advertising: advertising results from p-hacking, without even disclosing the subgroup to which the p-hacking purportedly applies.

Porter A. Tynes, III, Truth That Lies: How Literal Falsity Lost the Consumer and How to Restore It, 33 J. INTELL. PROP. L. (2026)

From the introduction:

For centuries, courts have treated false advertising law as a safeguard against deception, ensuring that claims of efficacy rest on verifiable fact. ThermoLife unsettles that foundation. The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held that an advertisement is not literally false so long as it is true for someone—even if it misleads almost everyone else. In a single stroke, the court hollowed out the Lanham Act’s most potent protection by turning literal falsity into a loophole.

9th Circuit applies Dastar to bar false advertising liability based on "first to market" claims

2026-06-01T14:58:00.000-04:00

Vericool World, LLC v. Igloo Products Corp., No. 24-192, 2026 WL 1239879, --- F.4th ---- (9^th Cir. May 6, 2026)

Judge Bumatay dissented from this decision extending Dastar to bar Lanham Act false advertising claims over who was “first” to market a biodegradable cooler. Given the citation to Bostock, this seems mostly like a fight about pretending that statutory interpretation is obvious rather than a matter of judgment.

Vericool alleged that Igloo violated the Lanham Act by wrongfully taking credit as the first to market a biodegradable cooler. The Lanham Act creates a cause of action against a defendant who “misrepresents the nature, characteristics, qualities, or geographic origin” of a good. Under Dastar, the “characteristic” must be an observable aspect of the “tangible product” rather than the “ideas or communications that ‘goods’ embody or contain.” “Because Vericool’s claim concerns the origin of an idea embodied in its coolers—rather than the characteristics of the product itself—we conclude it is not cognizable under the Lanham Act.” (What is “union made” under this reasoning? One could indeed go and observe nonunionized workers making a product—is that observable? I find the majority’s preclusion reasoning, detailed below, basically persuasive, but I’m not sure it can be cashed out as “observable aspect.”)

Vericool argued that, because of Igloo’s false advertising, it lost “the cachet that comes from producing a pioneering product” and could not capitalize on the same media attention and free advertising Igloo had. The complaint quoted media coverage referring to the Ohana cooler as “not the first of its species,” “another alternative to Styrofoam coolers,” and “much like the Igloo RECOOL biodegradable cooler.” Vericool also pleaded that “consumers . . . are more likely to purchase a product that is the ‘first’ of its kind rather than a secondary alternative.” During discovery, a Vericool representative testified that customers were likely to accuse Vericool of attempting to “knock off” Igloo’s Recool and that “third party entities indicated they were less interested in Vericool’s biodegradable coolers because Vericool was perceived as not being the innovator in the product category.”

The district court threw out the case because of Dastar.

On appeal, Igloo argued that Vericool lacked Article III standing, but it didn’t matter that current Vericool is a new entity; it was an assignee of the injuries of its predecessor in interest.

Dastar interpreted “the phrase ‘origin of goods’ in the Lanham Act in accordance with the Act’s common-law foundations (which were not designed to protect originality or creativity), and in light of the copyright and patent laws (which were).” Thus, “the most natural understanding of the ‘origin’ of ‘goods’” was “the producer of the tangible product sold in the marketplace,” not the “person or entity that originated the ideas or communications that ‘goods’ embody or contain.” Courts must avoid interpretations of the Lanham Act that extend “trademark and related protections into areas traditionally occupied by patent or copyright.”

The Ninth Circuit has already extended this logic to § 1125(a)(1)(B) false advertising. In Sybersound, the court held that “the nature, characteristics, and qualities” of a product “are more properly construed to mean characteristics of the good itself.” In particular, false claims that songs on karaoke records were “fully licensed” were not cognizable under the Lanham Act. The “characteristics of the good itself” must be observable about the product itself, “such as the original song and artist of the karaoke recording, and the quality of its audio and visual effects.” This avoids a copyright/advertising law clash and ensures that only copyright owners and exclusive licensees of copyright may enforce a copyright or a license.

The majority also looked to Baden Sports, Inc. v. Molten USA, Inc., in which the Federal Circuit held that a plaintiff could not bring a cause of action under § 1125(a)(1)(B) when a competitor advertised that it was the “innovator” of a technology that the plaintiff claimed it authored. “If ‘innovation’ or ‘newness’ was an attribute under the Lanham Act, litigants could find a loophole around Sybersound.”

This seems like a better statement of the rule than “observable,” and it brings in my favorite concept, materiality:

A misrepresentation about attributes embodied in a physical product is actionable under the Lanham Act if it misleads a consumer about the quality of a good itself or misrepresents the physical producer of a good in a manner that would be actionable under traditional claims for unfair competition. If, however, the misrepresentation regards “matters that are typically of no consequence to purchasers,” such as the source of the idea, design, or innovation embodied in the product, then plaintiffs must bring an intellectual property claim and cannot proceed under the Lanham Act.

“Misrepresenting the physical producer” seems like it would cover false union-made claims.

The dissent wanted to ignore Dastar “and instead be the first appellate court to adopt the broadest possible meaning of the text.” But “Dastar, Sybersound, and Baden Sports are not the one-off, fact-bound dispositions the dissent claims; each case examined the text and context to determine the extent to which the Lanham Act federally codifies common-law unfair competition claims while preserving the ‘carefully crafted bargain’ of intellectual property law.”

It didn’t make sense to assert that “the partial federal codification of common-law claims is necessarily limited in § 1125(a)(1)(A), but that Congress—in the same paragraph—intended the broadest possible codification of common-law claims in § 1125(a)(1)(B).” Instead, Dastar held that, “when determining whether a § 1125(a) cause of action incorporates common-law claims, we must be careful to avoid rendering limits on intellectual property claims ‘superfluous.’ That reasoning is not cause-of-action dependent—indeed, the Court cited subsection (a) without further specifying (1)(A).” This is preclusion reasoning.

And while the Court suggested in dicta that a plaintiff may have a cause of action under § 1125(a)(1)(B) if a defendant copies its video and advertises it as “quite different from” the original, that does not mean the subsection allows claims based on the ideas contained in the goods. The Court still contemplated observable qualities, as a viewer could watch the scenes and narration and observe that they were the same. And there is no way to distort the dicta to support a workaround to Dastar’s core holding that a misrepresentation about the author of a copyrighted work is not actionable under the Lanham Act.

Sybersound was also binding: it “held that plaintiffs cannot use § 1125(a)(1)(B) as a workaround for limits placed on copyright-infringement claims, such as copyright standing. But patent law also has limits, and allowing Vericool’s claim would allow it to collect damages for infringement on an idea that is not patentable.” Sybersound’s “characteristic of the good itself” test “requires proof of something observable by the consumer—‘such as the original song and artist of the karaoke recording, and the quality of its audio and visual effects’—to be cognizable under the Lanham Act.”

The dissent argued that this test will be difficult to apply, but it’s been a while since Dastar and Sybersound were decided, without much evidence of chaos. “If anything, the dissent’s crabbed reading of Sybersound is far more ‘difficult to administer,’ as it would require district courts to probe plaintiffs’ motives to ‘plead around’ restrictions in intellectual property law.” Rather—and here’s another, better statement of the test—courts should examine the defendant’s “objective statements to determine whether they relate to intellectual features of goods or to qualities of the products themselves.”

As a matter of statutory interpretation, too, adopting “something less than the broadest possible meaning of the text” is fine (citing Chevron USA Inc. v. Plaquemines Par., 2026 WL 1040461, at *6 (U.S. Apr. 17, 2026) (“But, generally in statutory interpretation, it is the ordinary, not literalist, meaning that is the better one.” (cleaned up))). Using “isolated dictionary definitions contributes little to finding the ordinary meaning of the terms of the Lanham Act. ‘The ordinary meaning is not merely a possible meaning,’ and the fact that we could stretch statutory terms further does not mean that we should.” That’s a key message of Dastar. “Ignoring context in textual interpretation can lead to contorted statutory interpretations. See, e.g., Bostock v. Clayton Cnty., 590 U.S. 644, 661–62 (2020).”

But where the dissent really foundered was on preclusion:

the dissent never grapples with the difficult question of which congressional enactment prevails when in conflict. “Congress does not hide elephants in mouseholes.” If Congress intended to undo detailed limitations on patent claims, it would have done so with more specificity than amorphous words such as “nature,” “characteristics,” and “qualities.”

What about the textual neighbors “geographic origin” and “services”?

The difference between a tangible geographic origin and an intellectual origin is a manageable distinction and the very distinction set forth in Dastar. And even though consumers may not be able to physically hold a service, a consumer may still observe qualities of a service. Neither term supports the dissent’s conclusion that Congress intended “nature,” “characteristics,” and “qualities” to include the ideas or designs embodied in goods or services.

The dissent also pointed to two examples of misrepresentations offered by the Restatement of Unfair Competition: misstatements as to whether a product is patented, and misstatements as to whether something is “the original.” Sure, perhaps false claims of being the “original” may also state a claim for reverse passing off under § 1125(a)(1)(A) by causing confusion as to the actual “producer of the tangible product sold in the marketplace.” As one district court explained, “it is plausible that such a claim to originality could sway a consumer . . . by intimating that these ‘original’ [products] are the ones the consumer remembers fondly from his childhood.” But that wasn’t argued here.

And the patent example was already dealt with by preclusion. (The majority doesn’t mention the false patent marking cause of action in the Patent Act, but that would bolster its argument.) “Here, because Congress chose to protect patents through a separate body of law, we doubt that this aspect of the common law is cognizable under the Lanham Act without a connection to the characteristics of the product itself.”

Crocs, Inc. v. Effervescent, Inc., 119 F.4th 1 (Fed. Cir. 2024), came out a different way because the claimant alleged that the “patented” misrepresentation conveyed a specific message that competitors could not offer the same materials. But Vericool waived any argument that the claimed misstatements related to any tangible characteristic or quality of the products. Here, the claims were “fundamentally about the origin of an idea.”

Igloo’s claim that its product was the “first” biodegradable product on the market

is not inherently a claim about the tangible characteristics of the cooler itself. No observable quality of the coolers suggests whether they are the first to be sold in the market. A consumer cannot determine whether a good is the first to the market without reference to additional knowledge about the market as a whole. Thus, such a statement—without more—is a statement about the “idea, concept, or communication embodied in those goods.” And the mere date on which a seller finalized a design for a product or first marketed it is “typically of no consequence to purchasers” when deciding which product is their preferred choice.

Indeed, Vericool’s own argument was only that this harmed its reputation for innovation. “Unfair competition law protects consumers purchasing products, not the goodwill and positive publicity of competitors in the market.” The dissent’s argument that Igloo’s statements implied that Vericool’s product was a “knock-off” and thus inferior conflated different meanings of “quality.”

The dissent’s argument relies on the inference that a product derived from someone else’s idea is less desirable and thus of inferior value. From there, the dissent chains together the added inference that inferior value connotes an observable characteristic. But while both inferences could be true, neither is necessarily true.… Vericool has no evidence that Igloo’s statements suggested that the Ohana was made of different materials, performs worse, or is less biodegradable than the Recool.

That is, it would be a cognizable theory that consumers believed from Igloo’s messaging that Vericool’s products had physical differences that made them not biodegradable, since that would be about physical qualities. In Crocs, for example, the Federal Circuit emphasized that “the false claim that a product [was] patented [did] not stand alone,” but rather allegedly “misled current and potential customers to believe” that the product was “made of a material that is different than any other footwear.” But Vericool presented no evidence of this on summary judgment; all its evidence was about confusion about which cooler was first. This wasn’t just a new argument—it was a new theory of harm/deception that required different evidence than Vericool’s initial first-to-market claim.

Ultimately, “Vericool’s claim based on statements claiming to be the first to the market also impermissibly seeks to vindicate an economic interest that patent law alone protects.” The PTO rejected many of Vericool’s claims in its patent application. “If Congress had intended to protect the economic value of inventing the general concept of a biodegradable cooler, it would have done so ‘with much more specificity than the Lanham Act’s ambiguous use’ of the terms nature, characteristic, and quality.”

Judge Bumatay dissented, at length, with many dictionary definitions of “nature, characteristics, [or] qualities.” He concluded that when a product reached the market is a “distinguishing quality,” a product’s “traits,” “qualities,” or “properties” could include its “design concepts,” and the “quality” of a thing can refer to its observable or non-observable attributes.

The dissent noted, correctly, that the list of words has similar, overlapping meanings. The point, he thought, was to ensure a broad, self-reinforcing, “belt and suspenders” meaning. The neighboring terms also were relevant: a false claim about “geographic origin” “generally has nothing to do with a good’s tangible or observable features.” The dissent thought that “geographic origin” was similar to the “idea” or “design concept” that the majority excluded. (Seems like that could cut the other way, though—if “origin” alone means only physical origin per Dastar, and needs a modifier to do something else, then the other terms plausibly are also physical.)

But, the dissent continued, services are “often intangible.” “If a company lied and said that Albert Einstein invented its physics-tutoring service, that would be a ‘characteristic’ of the service—but not a tangible or observable one.” The dissent also claimed, without real citation of pre-Lanham Act cases, that “Section 43(a)(1)(B) creates a federal cause of action for common-law ‘false advertising,” defined as occurring when “a seller falsely advertises that his product has qualities which in fact it does not have, but which products of other sellers do in fact possess.” “Thus, the common law of false advertising applied broadly to all material misrepresentations—regardless of whether the misleading statement went to tangible or intangible features of a product.” The Restatement of Unfair Competition says that “a representation that only indirectly relates to product quality or that in some other manner relates to the desirability of the proposed transaction may also be material.” (Citation to something other than the Restatement needed; there really wasn’t a non-disparagement-based, common-law false advertising cause of action for competitors, which is why the Lanham Act proved so popular that 43(a) was explicitly split up in 1988 to recognize false advertising as a separate claim.)

Ultimately, § 43(a)(1)(B) should apply to a false claim that a biodegradable cooler is, as a historical fact, “the first of its kind.” “After all, purchasers may want to reward innovators in environmentally friendly production—so the identity of the first producer may be material.” (Citing Joseph P. Bauer, A Federal Law of Unfair Competition: What Should Be the Reach of Section 43(a) of the Lanham Act?, 31 UCLA L. Rev. 671, 743 (1984) (“[F]alse claims about the goods’ uniqueness . . . are often . . . important to the consumer, and have [a] likelihood of injuring both consumer and competitor[.]”.) [Well, it’s a citation, though not to empirical evidence.]

Dastar was about § 43(a)(1)(A), not § 43(a)(1)(B). But the latter isn’t just about likely confusion, a “traditional intellectual-property concern.” [Again, citation needed. The idea that trademarks—or, even more, unfair competition and the unregistered/unregistrable matter that was covered by § 43(a) when the Lanham Act was enacted—are part of “intellectual property” is a relatively modern one.] Section 43(a)(1)(B) is “more broadly” about “misrepresent[ations]”—as fits its false-advertising roots. (Oh, how I wish it were broader than likely confusion.)

Because Dastar was about the “federal cause of action for traditional trademark infringement of unregistered marks,” it didn’t cover false advertising. Indeed, in discussing the potential for false advertising claims, all Dastar required was a misleading claim that the product was “different” than the original in some way— “it didn’t limit those differences to only tangible or observable features.” “Section 43(a)(1)(B) is concerned with policing outright lies in advertising and commercial promotion—not confusion between intellectual properties.” [Note that the rhetoric of “outright lies” is inaccurate: Lanham Act false advertising includes both implied falsehoods and entirely unintended falsity. This tends to happen to everyone when trying to defend a distinction—to give nuance to one body of law is often to flatten out another one.]

Sybersound, too, “dealt with a specific problem—misusing a false-advertising claim to plead around the requirements of a copyright claim.” The dissent accepted that “[s]ome plaintiffs have attempted to avoid a Lanham Act § 43(a)(1)(A) trademark infringement and unfair competition allegation by asserting that the same facts establish a claim of false advertising under § 43 (a)(1)(B).” “The usual aim of this improper pleading is to avoid having to prove the validity of a trademark by claiming it is some new type of false advertising.” [From a false advertising perspective, this framing is very odd, given that it’s generally much harder to prove a false advertising claim with its extra materiality and commercial advertising requirements, plus the requirement of survey evidence for implicit falsehoods, whereas courts routinely find trademark infringement by implication without extrinsic evidence.]

In the dissent’s view, Sybersound was apparently only about this misstated infringement claim, even though the plaintiff contended that the false advertising was about whether defendant’s copies were legitimately licensed from the copyright owner. [The dissent also doesn’t seem super interested in distinguishing copyright from trademark.] Sybersound said that § 43(a)(1)(B) doesn’t cover “misrepresentations about copyright licensing status” because that would conflict with copyright law. [Does the dissent think that misrepresentations about patent licensing status are actionable as well?] Indeed, the case even suggested that the intangible origin of a product, such as who was the “original . . . artist” of a karaoke recording, was an actionable “characteristic.” “Instead, the original artist of a karaoke song is a characteristic like who was first to market a biodegradable cooler.” [This is playing with the meaning of “original”— “whose voice is recorded in this recording?” is a very different issue than “who was the first to sing this?”]

The patent conflict was narrow: Vericool wasn’t bringing a faux patent claim, but merely asserting that, “as a matter of historical fact, it was the first to manufacture the coolers.”

And the majority’s atextual “observable-characteristics only” test would be difficult to administer. A claim that a product is made of “patented” material could be actionable, or not.

Plus, Vericool could satisfy the “observable-characteristics only” test with its argument that Igloo’s advertising caused confusion that its cooler was a “knock off” of Igloo’s cooler. “Whether something is an imitation or copy of another thing seems potentially ‘observable’ to me. … And usually a ‘knock off’ is considered a cheaper version of the original—again, potentially a tangible or observable characteristic.” [I see most of the dissent’s points, but this one seems wrong, given the failure to develop an evidentiary record on this different theory of falsity & harm.]

claim that entity sells unapproved drugs does not misrepresent "origin, sponsorship, or approval" for Lanham Act purposes

2026-06-01T14:56:00.000-04:00

Peptide Tech LLC v. Avidia Bank, 2026 WL 1506049, No. 25-13179-MJJ (D. Mass. May 28, 2026)

Plaintiff sells peptides; Avidia is a bank and acquiring bank for merchants who accept credit and debit card payments. Doe defendants allegedly reported Peptide Tech to Mastercard, leading Mastercard to place Peptide Tech on the Member Alert to Control High-Risk Merchants (“MATCH”) List. Plaintiff brought claims for breach of contract, tortious interference with business relationships, violation of Mass. Gen. Laws ch. 93A (a state false advertising provision), and violation of the Lanham Act. The court granted the motion to dismiss.

“To accept debit and credit card payments, merchants must obtain payment processing services through a payment processor and a member bank, also known as an acquirer. These payment processing services are contracted with payment card brands … [whose] rules govern participants in the payment processing system, including payment processors, acquirers, and merchants.” Avidia is an acquirer with whom Peptide Tech entered into a merchant processing agreement. Peptide Tech identified its business category as “Research Chemicals,” and alleged that it doesn’t sell peptides for human consumption, but to research labs, which is legal.

“MATCH is a Mastercard-maintained database that identifies merchants terminated by acquirers due to suspected high-risk behavior, such as fraud, excessive chargebacks, or regulatory violations.. Placement on MATCH effectively eliminates a business’s ability to accept credit card payments for its products.”

Avidia allegedly recommended, supported, or otherwise caused Peptide Tech to be placed on the MATCH List, causing significant monetary harm.

Breach of contract claims failed for want of terms plausibly breached; tortious interference failed for want of pleading actual malice.

The Ch. 93A claims failed as repackaged breach of contract claims; the agreement plainly said that Avidia could terminate the relationship in its “sole discretion,” and there were no facts pled that Avidia misled payment card entities; Peptide Tech merely speculated that Avidia incorrectly communicated to them that Peptide Tech’s products were unapproved.

Lanham Act: Peptide Tech argued that Avidia violated § 1125(a)(1)(A)’s ban on false statements “likely to cause confusion, or to cause mistake, or to deceive as to the … origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person,” because it allegedly communicated that Peptide Tech was selling unapproved drugs.

But §43(a)(1)(A) is for trademarks, and Peptide Tech didn’t plausibly allege trademark confusion: “marketplace confusion about whether goods are affiliated with or approved by another person.” A false suggestion that a plaintiff’s products were “unapproved or illegitimate” “does not allege confusion about the origin of Plaintiff’s products, affiliation with another entity, or sponsorship or approval by another person in the Lanham Act sense.”

§43(a)(1)(B) false advertising: No commercial advertising or promotion.

plaintiff delay affects irreparable harm and balance of equities where third parties rely on defendant

2026-05-29T14:46:25.305-04:00

Pulling Guard Prods., LLC v. Lambert, No. 26-CV-2305 (PJS/LIB), 2026 WL 1481302 (D. Minn. May 27, 2026)

Plaintiff made a “strong showing” that defendants’ “Minnesota Monsters” name and branding infringe its “Duluth Harbor Monsters” mark, though it didn’t show likely success on its claims for false advertising, breach of contract, tortious interference with contract, tortious interference with prospective economic advantage, unjust enrichment, and violation of the Minnesota Deceptive Trade Practices Act.

I’m blogging this because the court relies on plaintiff’s delay to deny a preliminary injunction (even though the court doesn’t mention the statutory presumption of irreparable harm; other courts have reaffirmed that delay can also rebut that presumption). The alleged infringement had been going on for months—and was fully known to plaintiff—before it filed suit and sought a preliminary injunction. “[A]t this point, it appears that little additional harm will be caused by defendants’ continued infringement.”

The delay also had effects on the balance of equities:

[T]he potential harm of an injuction to defendants has escalated dramatically now that the “Minnesota Monsters” are nearly one-third of the way through their season. Additionally, numerous innocent third parties could be harmed—including concession workers, television broadcasters, players, and fans—if the Court were to order the “Minnesota Monsters” to change its name and marketing in the middle of the season.

a bot maybe accessed a former employer's trade secrets; larger trade secret/false advertising issues ensure employer's victory

2026-05-29T14:42:46.498-04:00

Capconvert, LLC v. Brown, 2026 WL 1471880, No. 26-cv-02149-CRB (N.D. Cal. May 26, 2026)

Capconvert sued its former employee Brown primarily over alleged misappropriation of Capconvert’s trade secrets and confidential information for use in a competing business venture involving search engine optimization (SEO), generative engine optimization (GEO) (ugh), answer engine optimization (AEO) (double ugh), and paid ad management services. The court followed an earlier TRO by granting a preliminary injunction. I will focus only on the Lanham Act/California FAL claims, except to note that the record contains a document, apparently a prompt to an AI agent, stating “This is the most important rule you have. You violated it on February 26th, 2026, and it nearly destroyed Ben’s career,” purportedly intended to make it “abundantly clear to any agent that I was working with ... to not access any Capconvert ... file.” However, another bot allegedly “disputed” that any such access occurred. Where is the truth? It will likely take many, many expensive hours of lawyer billing time to identify. So if you’re looking for a litigated case to scare people about AI and trade secrets—it has arrived.

Brown’s competing service, Signyl claims to offer the same services as Capconvert. Brown’s LinkedIn page described him as “Managing Partner” of Capconvert, though that was never his role or title. It stated that he worked on Capconvert’s Rankily product, but he did not. The Signyl website states “200+ Brands managed $50M+ Ad spend optimized,” which cannot be true as Signyl had only existed for one month. Brown had no relevant experience in SEO prior to his time at Capconvert, and while there, only brought in one client. He did not manage 200+ Brands or optimize a “$500M+ Ad spend.” The Signyl website also appears to misrepresent Signyl’s performance metrics.

Brown contended that “the metrics displayed on that site did not relate to Capconvert work” but were “derived from my work predating Capconvert” and that “any public statements I made about my experience were intended to refer to my own prior professional background and track record at Google.”

The court found many of the website claims “plainly false.” “Signyl has no clients, let alone 200+ clients…. A banner that ‘runs across the front page of the Signyl.agency’ making claims about particular experience necessarily suggests that the experience is that of the company whose website it is. Those claims are false, at least as to Signyl.” Likewise, the claims were material: “Representations of experience across relevant services and with hundreds of brands would likely be material to prospective clients seeking those services.”

However, while the LinkedIn statements were false, Capconvert hadn’t yet demonstrated how it was likely to be injured as a result.

Irreparable harm as to the false advertising was presumed under the Lanham Act, and shown for trade secrets. “Signyl has only been operational for a couple of months; that it has not yet poached any business from Capconvert using Capconvert’s trade secrets and confidential/proprietary information or by misrepresenting itself on its website does not mean that Signyl is not likely to cause harm going forward.” Likewise, on the balance of equities, the court commented: “Even if an injunction amounted to a shut down, just how much would a preliminary injunction shut down?”

Igloo must face biodegradability/recycled content/made in USA consumer claims

2026-05-29T14:25:29.615-04:00

Lieber v. Igloo Products Corp., --- F.Supp.3d ----, 2026 WL 266301, No. 25-CV-488 (ARR) (LKE) (E.D.N.Y. Feb. 2, 2026)

I’ll get to the Igloo 9^th Circuit case eventually. This case is a putative consumer class action against Igloo, alleging that its claims that its coolers are “biodegradable,” made of “recycled content,” and “Made in the USA” are false and misleading under NY law.

First: Plaintiffs alleged that “biodegradable” would lead reasonable consumers to believe that the product would completely degrade within a reasonable period of time after customary disposal, but instead it typically ends up in landfills after it is thrown out. The FTC’s Green Guides say:

It is deceptive to make an unqualified degradable claim for items entering the solid waste stream if the items do not completely decompose within one year after customary disposal. Unqualified degradable claims for items that are customarily disposed in landfills, incinerators, and recycling facilities are deceptive because these locations do not present conditions in which complete decomposition will occur within one year.

NY law provides a “complete defense” to liability under its false advertising provisions if the defendant’s “act or practice is ... subject to and complies with the rules and regulations of, and the statutes administered by, the federal trade commission or any other official department, division, commission or agency of the United States.” “A court may evaluate a challenged representation’s compliance with the FTC’s Green Guides to determine whether or not there is a complete defense to a claim under N.Y. G.B.L. §§ 349 and 350.”

Igloo argued that the claims should be dismissed because the Green Guides don’t create a private right of action, but of course plaintiffs were suing under NY law, not the Green Guides.

Igloo also argued that “the term ‘biodegradable’ does not mean ‘will biodegrade’ or ‘destined for inevitable biodegradation,’ ” and plaintiffs didn’t allege that the ReCool Product was inherently incapable of biodegrading or that consumers knew about the Green Guides.

The court found deception plausible. It was plausible that the products didn’t comply with the Green Guides; the complaint alleged that the products were customarily disposed of in landfills, and lacked the necessary qualifications for a biodegradability claim.

Second, Igloo made “recycled” claims about some products, but plaintiffs alleged that only some parts were made from recycled plastic, but not, e.g., foam insulation and interior linings, and cited the Green Guides again:

Marketers can make unqualified claims of recycled content if the entire product or package, excluding minor, incidental components, is made from recycled material. For items that are partially made of recycled material, the marketer should clearly and prominently qualify the claim to avoid deception about the amount or percentage, by weight, of recycled content.

This too was plausible at this stage. “While defendant cites numerous decisions where courts declined to read ‘exclusively’ into an advertising claim—such as whether the phrase ‘real cocoa’ on a product’s packaging implied that a product is made exclusively of real cocoa—it fails to consider that purchasing decisions are made within a specific context.”

Third, Igloo allegedly made Made in USA representations even though not all or virtually all aspects of the relevant products, including the raw materials, components, and manufacturing processes, originated from and occured within the United States. Plaintiffs alleged that specific materials were likely made outside the US, and full components such as hinges, handles, drain plugs, bottle openers, spigots, washers, and wheels were allegedly imported from manufacturers outside of the United States. The FTC defines “Made in the United States” and its synonyms to mean “any unqualified representation[ ], express or implied, that a product, and by extension, the raw materials used in its manufacture, are of U.S. origin.” Thus, federal regulations consider it a deceptive practice to label a product as “Made in the United States” or with substantially similar representations unless (1) the final assembly or processing of the product occurs in the United States, (2) all significant processing that goes in the product occurs in the United States, and (3) all or virtually all ingredients or components of the product are made and sourced in the United States.

Even though plaintiffs only alleged that certain materials were “likely” from outside the US, it was plausible that the claims were deceptive.

Breach of express warranty claims failed for want of sufficient pre-suit notice, and unjust enrichment claims were dismissed as duplicative.

America Unfinished: book announcement

2026-05-29T12:09:48.331-04:00

America Unfinished

250 Years of Law and Governance

Edited by Alexandra Natapoff and Guy-Uriel E. Charles

From the publisher:

An engaging and timely essay collection on the challenges, risks, and opportunities of this historic moment in American law and governance.

1,000-word essays from the country’s leading legal scholars and experts.

It is the 250th anniversary of the Declaration of Independence, and the U.S. is grappling with foundational challenges to its laws, institutions of governance, and civic culture. Longstanding values of pluralism are being challenged. The nation is beset by deep political polarization, a fear that the economic order is no longer providing opportunities for all, and a technology revolution that may unsettle what it means to be uniquely human. America Unfinished brings together more than 50 legal scholars on the Harvard Law School faculty to analyze this historic moment in American law and governance.

Edited by Alexandra Natapoff and Guy-Uriel Charles, the book coheres around the dramatic experiment in American legal governance that began in 1776, still highly contested after 250 years. Some essays explore the modern expansion of executive power, including its recent and dramatic willingness to use violence, both domestically and internationally. Other essays examine longstanding divides between workers, consumers, and markets, and the hard questions they raise about democratic accountability in our market-driven economy. And finally, some contributors address the future of our knowledge and governance institutions under pressure from the disruptions caused by technological and informational revolution.

Dynamic and engaging, the collection does nothing less than advance the core conversations necessary for a thriving polity, both at this historic moment and for decades to come.

Contributors: Bill Alford, Sabrineh Ardalan, Yochai Benkler, Sharon Block, Nikolas Bowie, Maureen Brady, Scott Brewer, Stephen Breyer, Emily Broad Leib, Tomiko Brown-Nagin, Guy-Uriel E. Charles, John Coates, I. Glenn Cohen, Andrew Manuel Crespo, Christine Desan, Kristen E. Eichensehr, Benjamin Eidelson, Jared Ellias, Susan H. Farbstein, Noah Feldman, Jody Freeman, D. James Greiner, John Goldberg, Annette Gordon-Reed, Sheila Heen, Howell Jackson, Elizabeth Papp Kamali, Randall Kennedy, Michael Klarman, Adriaan Lanni, Eloise Lawrence, Richard Lazarus, Jill Lepore, Lawrence Lessig, Kenneth W. Mack, Bruce H. Mann, Martha Minow, Daniel Nagin, Alexandra Natapoff, Charles Nesson, Gerald L. Neuman, Ruth L. Okediji, Mariana Pargendler, Intisar A. Rabb, Richard M. Re, Daphna Renan, Mark J. Roe, Benjamin Sachs, Stephen E. Sachs, Larry Schwartztol, Joseph William Singer, Carol Steiker, Nicholas Stephanopoulos, Kristen A. Stilt, Ronald Sullivan, Cass R. Sunstein, Philip Torrey, Rebecca Tushnet, Dehlia Umunna, Rachel A. Viscomi, Laura Weinrib, Alex Whiting, David Wilkins, and Jonathan Zittrain.

“A thoughtful, insightful, and informed collection of essays addressing some of the most urgent issues facing our nation today. A valuable contribution to understanding America at a critical moment.”

—Bryan Stevenson, Founder and Executive Director of the Equal Justice Initiative; author of Just Mercy

“This thought-provoking collection of 62 short essays — some of them odd, some provocative, some insightful, and some even beautiful — is a remarkable gift to the nation on its 250th birthday.”

--Michael W. McConnell, Richard & Frances Mallery Professor, Stanford Law School, Director, Stanford Constitutional Law Center, Senior Fellow, Hoover Institution

“A must-read collection. These essays show myriad ways that American law has secured, betrayed, and threatened American liberty as the Declaration of Independence turns 250. They indict and inspire—at once dark, practical, brilliant, and deeply moving.”

--Reva Siegel, Nicholas deB. Katzenbach Professor, Yale Law School

“An astonishingly wide array of reflections on the condition of America today. An irreplaceable book.”

--William Baude, Harry Kalven, Jr. Professor of Law, University of Chicago Law School

"A timely and provocative collection of essays from some of the nation's most thoughtful and prolific scholars, America Unfinished is a crucial step toward a more perfect union.”

--Melissa Murray, Frederick I. and Grace Stokes Professor of Law, New York University

competitor lacks standing under Cal. law because it didn't rely on alleged misrepresentations; its customers did

2026-05-27T12:55:00.000-04:00

Kachuck Enters. v. Mission Produce, Inc., --- F.Supp.3d ----, 2026 WL 216475, No. 2:25-cv-01523-AH-JCx (C.D. Cal. Jan. 22, 2026)

This was a putative class action about alleged misrepresentations made by distributors and suppliers of Mexican-grown avocados that their avocados are sustainably and responsibly sourced. Plaintiffs, California avocado farmers, alleged losses from defendants’ touting of “unsustainably grown Mexican avocados as ‘sustainable’ to consumers.”

Despite representations about water conservation, biodiversity, and soil health, defendants allegedly source their avocados from Mexican orchards installed on lands recently deforested without the proper permits from Mexican authorities. “Sourcing avocados from deforested land exacerbates ongoing water scarcity in Mexico, contributes to climate change, and leads to habitat and biodiversity loss.” Plaintiffs cited various surveys showing that “significant segments” of U.S. consumers prioritize sustainability and more transparency from food producers and retailers throughout the entire food supply chain. Another survey “found that more than half ... of consumers indicated they are willing to spend more money on products that are deemed sustainable or environmentally friendly.”

Plaintiffs brought the usual California statutory claims. The court found no standing under the FAL and the “fraudulent” prong of the UCL because plaintiffs didn’t allege their own reliance on the false claims; rather, they alleged that they were harmed by consumers’ reliance on the allegedly false claims. This reasoning seems dumb—these laws were intended to protect competitors as well as consumers—and the court noted an increasing minority of federal district courts have rejected it. It’s probably time for the 9^th Circuit to certify a question, though I don’t have much doubt that the California Supreme Court will clarify that consumer reliance is required, but not competitor reliance.

As for unfair competition/UCL unfairness, the court applied the “tethering” test, which applies in actions “by a competitor alleging anticompetitive practices.” A finding of unfairness must be “tethered to some legislatively declared policy or proof of some actual or threatened impact on competition”: “conduct that threatens an incipient violation of an antitrust law, or violates the policy or spirit of one of those laws ..., or otherwise significantly threatens or harms competition.”

The test was not satisfied. Although plaintiffs argued in briefing that “Defendants’ influx of cheaply priced and unsustainably—and possibly illegally—sourced avocados distorts the market,” while plaintiffs must comply with strict sustainability requirements, while the complaint focused only on defendants’ acts of “offering for sale and selling deceptively labeled Mexican avocados” and “deceptively marketing products.”

Regardless, that theory wasn’t enough. Plaintiffs argued that defendants’ sourcing practices are exploitative because they are “possible only by entities with sufficient size and power to dominate operations in foreign countries with weaker environmental regulations” and they “exploit residents of a foreign country and contribute to the wholesale destruction of forests.” Thus, “Defendants leverage their size and reach to flood the market with avocados, boxing out competitors.” But these were “conclusory assertions,” and didn’t explain what part of antitrust law was implicated. Nothing in the FTC Act specifically “precludes a business from sourcing its products in a lower-cost country where environmental laws or other safeguards may be less stringent than in the United States,” and sourcing products abroad is not an FTC Act violation “simply because regulatory conditions in those countries make the cost of production lower.” Plus, injury to competitors isn’t injury to competition. [That argument rings particularly hollow where the alleged distortions operate on whole countries’ worth of businesses.]

despite some skepticism, court mostly allows adtech vendor's disparagement claims against competitor to proceed

2026-05-27T12:52:00.000-04:00

Double Verify Holdings, Inc. v. Adalytics Research, LLC, No. 25-1535-TDC, 2026 WL 1133411 (D. Md. Apr. 27, 2026)

DoubleVerify is in the business of “helping brands, agencies, and publishers verify that their digital advertising investments are delivered as intended.” Its customers advertise online and thus seek to ensure maximum viewership by real potential consumers. “Online ads are typically placed on websites through a high-speed, auction-like process.” The auctioneer, a “demand-side platform,” collects “bids” from advertisers; this is the “pre-bid” stage. If an advertiser’s bid is accepted and its ad is displayed, or “served,” to the webpage visitor, the advertiser will be billed for the “impression.”

Online advertisers retain DoubleVerify to avoid having their ads served to bots rather than to humans, and to avoid paying for such impressions if they do occur. DoubleVerify offers two solutions to help customers avoid paying for views resulting from bot activity, aka invalid traffic (IVT): it claims that its pre-bid service successfully filters out 99 percent of GIVT impressions at the pre-bid stage, but it also offers a post-serve service that (1) identifies and removes views resulting from standard bot IVT (GIVT) from the counts of billable views and (2) notifies customers about views resulting from malicious IVT so that they may then seek reimbursement from the publishers. Users can use the pre-bid service, the post-serve service, or both.

Adalytics is an “ ‘ad-tech’ vendor” that “sells an ad transparency service that competes with DoubleVerify” and allegedly carried out a disparagement campaign. Its report quoted DoubleVerify’s claim that it “offers the most comprehensive and accurate pre-bid avoidance targeting available in the market” but didn’t mention DoubleVerify’s post-serve services.

The Report claimed to be the “largest analysis of declared bot traffic in the context of digital advertising.” Relevant claims: (1) “Many publishers which appear to employ the IAS and DoubleVerify publisher optimization tools on their pages were observed serving ads to bots, including to declared bots operating out of known data center IP addresses.” (2) “Hundreds of major brands whose ads’ source code include[s] … code from DoubleVerify appear to have had their ads served to bots in data centers.” (3) Advertisers “whose ads appear to be mediated by DoubleVerify’s Scibids AI technology” were served “to declared bots operating out of known data center IP addresses or to URLScan[’s] bots.”

It concluded that “[i]nterpreting the results of this observational study requires nuance and caution,” and that “[o]ne should not assume that because a given ad tech vendor or vendors transacted a given ad to a bot that those vendors are somehow responsible or ‘at fault’ for the ad being served to a bot.” The Report also cautioned that “[r]eaders should be discerning and careful not to conflate distinct sets of observations or draw inferences about causality, intent, quantitative impact, magnitude, or provenance,” and that it “makes no assertions about” these issues. And it said that it “does not make any recommendations to media buyers with regards to whether or not to transact with specific ad vendors or with specific publishers,” but advised that advertisers “may benefit from undertaking a closer review of their digital advertising.”

DoubleVerify argued that, based on Adalytics’s “willful blindness to post-serve detection and filtration,” the Report “falsely and misleadingly portrays DoubleVerify’s web advertisement verification and fraud protection services as ineffective, including by stating or clearly implying that DoubleVerify’s customers are regularly billed for GIVT impressions.” In addition, references to DoubleVerify in the source code on webpages from which ads were served to bots could have occurred in relation to DoubleVerify customers who did not use its pre-bid services. DoubleVerify alleged that, for all of the ad views, or impressions, cited in the Report that were ostensibly connected to DoubleVerify and that it was able to identify in its records, it confirmed that it had actually detected such impressions at the post-serve stage and either removed them from customers’ billable counts or flagged them for reimbursement.

DoubleVerify alleged additional false or misleading statements or material omissions, including using 115 screenshots of advertisements presented in the Report as having been served by DoubleVerify customers where at least 62 had no apparent connection to DoubleVerify.

DoubleVerify alleged reputational and financial harm from dissemination of these claims, including a WSJ article titled “Efforts to Weed Out Fake Users for Online Advertisers Fall Short,” which stated that DoubleVerify “regularly miss[es] nonhuman traffic.” DoubleVerify’s stock price fell, and it allegedly had to expend employee time and resources to counter the Report. It therefore sued for false advertising under the Lanham Act as well as defamation, injurious falsehood, tortious interference with business relations, and unfair competition.

Was this a “commercial advertisement or promotion”? “Although the Report reads more like an analysis of other products and related technology than a communication aimed at selling Adalytics’s own goods or services, DoubleVerify asserts that Adalytics publishes research of this kind because it ‘uses its blog posts and articles to promote its own platform’ and supports that claim by pointing to a February 2025 statement on Adalytics’s website that it ‘release[s] thought leadership on systemic issues affecting brands and their media investments ... to ... attract new clientele.’” And it alleged an economic motivation for publishing: to win new business from customers of DoubleVerify.

Although the Report didn’t promote a specific product, that wasn’t dispositive of whether this was commercial speech. Nor was whether this was a traditional “advertisement.” At this stage, Adalytics’ direct competition and commercial motivation was enough: “the Report could potentially constitute commercial speech where its focus was the dissemination of the results of an analysis critical of a competitor’s product or service.” And allegations about harm to DoubleVerify’s stock price and “inbound calls from its customers regarding the effectiveness of DoubleVerify’s services” adequately alleged that the Report was “sufficiently disseminated to the relevant purchasing public to constitute advertising or promotion within that industry.”

Adalytics claimed that the challenged statements were all protected opinions on scientific and technical matters. The court disagreed (reaching the same result on defamation).

Defamation: most of the challenged statements weren’t alleged to be literally false. For example, the complaint conceded that DoubleVerify’s pre-bid services do not actually prevent all ads from being delivered to bots when it acknowledged that those pre-bid services filter out only “99% of unwanted GIVT impressions.” But defamation by implication was possible. Under governing Maryland law, if “the expressed facts are literally true,” a plaintiff pursuing a defamation-by-implication theory “must make an especially rigorous showing” and may prevail only if the challenged language “affirmatively suggest[s] that the author intends or endorses the inference.”

The court found it significant that the Report stated that “impression level log file data and financial invoices suggested that advertisers were billed by ad tech vendors for ad impressions served to declared bots operating out of known data center server farms.” This was fairly implied to relate to DoubleVerify. Also, the Report plausibly misled when it claimed to be able to identify whether a given brand had been charged for bot avoidance services, even when these impressions could have been served by DoubleVerify customers that do not have pre-bid solutions enabled. The court was a bit skeptical—DoubleVerify didn’t allege that any material number of its customers place online ads without enabling DoubleVerify’s pre-bid solutions—but the case was in an early stage.

Assuming, without deciding, that DoubleVerify had to plead an endorsement of the defamatory implications even though DoubleVerify wasn’t a public official, it was plausible that Adalytics, which “claimed expertise in advertising technology,” would understand that “DoubleVerify’s customers, in accordance with industry standards, would not be charged for pre-bid impressions served to bots once DoubleVerify’s post-serve processes were run.” Also, DoubleVerify’s “pre-emptive article,” published two months before the Report, put Adalytics on notice. And Adalytics allegedly illustrated its intent to disseminate defamatory information because it sent a draft version of the Report to certain media outlets but never requested any comment from DoubleVerify. These allegations were sufficient if not “overly compelling.”

The disclaimer wasn’t sufficient because it didn’t specifically disclaim the allegedly defamatory implication.

Nor was the Report protected opinion. “[A]lthough Adalytics used some technical methods in the Report, it was published on the company’s general website and was not a peer-reviewed scientific or technical journal article such as those at issue in cases cited by Adalytics on this point.”Even assuming that DoubleVerify was a limited-purpose public figure, it alleged sufficient facts for actual malice, noted above.

Injurious falsehood claims also survived. Expenses incurred when countering the publication of the Report were sufficient to allege special damage. Common-law unfair competition also survived, but tortious interference claims failed because Double Verify didn’t “identify a possible future relationship which is likely to occur, absent the interference, with specificity.”

9th Circuit reverses dismissal where plaintiff plausibly alleges that an ingredient is non-natural flavoring

2026-05-26T10:18:32.328-04:00

Trammell v. KLN Enterprises, Inc., No. 24-6097 (9th Cir. May 15, 2026)

Perfect summary:

The defendant company in this case represented to consumers that its berry snacks product contained no artificial flavors. The plaintiff bought the product believing the representation to be true. It turned out, however, that the product contained an artificial flavor. Laboratory testing revealed that the product’s flavoring was not naturally occurring but made from an artificial petroleum substrate. At least this is what the plaintiff alleged (albeit with more detail) in his complaint. The district court concluded, however, that the plaintiff failed to state a claim and dismissed the complaint with prejudice. We disagree and reverse.

Wiley Wallaby Very Berry Licorice says on the front, “Natural Strawberry & Raspberry Flavored Licorice,” and “Naturally Flavored,” while the back label states, “Free of . . . Artificial Colors & Flavors.”

Trammell sued for violation of the CLRA, unjust enrichment, and breach of express warranty. Although the product represents that it is free of artificial colors and flavors, it allegedly contains an artificial flavor, malic acid. Natural malic acid, derived from natural fruit sources, is commonly known as “L malic acid,” while artificial malic acid, derived from a petroleum substrate and other synthetic components, is commonly referred to as “DL malic acid.”

Trammell alleged that the product was tested in a laboratory and that the testing results “establishe[d] that the malic acid used in these Products is DL malic acid, and not L malic acid.” Allegedly, the test used the “industry standard” method for testing for the “D isomer” of malic acid, which is “not present in any amount in” natural malic acid and which would indicate “the use of artificial DL malic acid” in the food or beverage tested.

The district court thought that wasn’t enough to plausibly allege that the malic acid was artificial, and that a reasonable consumer wouldn’t be misled because “Naturally Flavored” and “Natural Strawberry & Raspberry Flavored Licorice” were “not unambiguously deceptive”: “a reasonable consumer would not interpret the front label as unambiguously representing that [the Product] does not contain artificial ingredients.” The back label statement “Free of . . . Artificial Colors & Flavors” was not deceptive because the back label “discloses both natural and artificial ingredients in plain text.” “[N]owhere on the front or back label does it state that the product is ‘all natural,’ ‘100% natural,’ or ‘free of artificial ingredients,’” so “nothing about this product—a brightly colored, shelf-stable licorice candy—would lead a reasonable consumer to conclude that [the Product] is free of artificial ingredients when the product labels make no affirmative representations saying as such.”

This was error. The complaint satisfied Rule 9(b). It gave notice to the defendant and provided the court with “some assurance” that his theory of liability “has a basis in fact.” Trammell alleged the specific laboratory that performed the testing; he provided a date of the testing; he explained the qualifications of the laboratory (“a reputable independent food testing and analysis laboratory that has conducted testing for the food and beverage industry since 1984”); and he discussed the laboratory’s “industry standard” methodology for detecting artificial malic acid by testing for the presence of the “D isomer” of malic acid, which is “not present in any amount” in natural malic acid. That was specific enough, and more specific than the allegations in cases on which the district court relied.

As for the merits, “Trammell plausibly pleaded that a reasonable consumer is likely to be deceived by a product that claims to be free of artificial flavors when that claim is (allegedly) not true.” Even if “Natural Strawberry & Raspberry Flavored Licorice” and “Naturally Flavored” wasn’t false or misleading, the back label makes a specific claim about being “Free of . . . Artificial Colors & Flavors,” Trammell has plausibly pleaded that was false or misleading.

Nor, contrary to the district court’s reasoning, did the back label actually disclose both natural and artificial ingredients:

The ingredients list on the back label does not disclose, on its face, which of the ingredients are artificial. Indeed, despite claiming that artificial ingredients are plainly disclosed, neither the district court nor Defendant identifies which ingredients are artificial. Some ingredients, like “malic acid,” may come in two forms—natural or artificial. But the list does not say which it is. A reasonable consumer, not being a chemist, is not in a position to make that assessment when buying the Product. What a reasonable consumer can understand is the Product’s representation that there are no artificial flavors. When that clear representation is placed next to an ingredients list—a list that does not make apparent (1) which ingredients are flavors and (2) which of those ingredients are artificial—a reasonable consumer could plausibly be (mis)led into believing that the Product does not contain artificial flavors. If anything, the ingredients list here—which does include an ingredient called “natural flavor”—reinforces the Product’s free-of-artificial-flavors statement.

True, the product never claimed to be “‘all natural,’ ‘100% natural,’ or ‘free of artificial ingredients,’” but Trammell’s claim wasn’t that those things were false, but rather that the product was not free of artificial flavors. The fact that the product is “a brightly colored, shelf-stable licorice candy” “may go to the artificiality of the coloring and preservative; they do not necessarily bear on the artificiality of the flavors.”

Defendant also argued that the FDA considers “malic acid” a mere “flavor enhancer,” not a “flavoring agent.” “But whatever category malic acid falls under in the FDA’s regulatory scheme, the question is what a reasonable consumer expects, not what a regulatory expert in the food-and-beverage industry knows. And here, Trammell has plausibly alleged that a reasonable consumer expects the Product to be free of artificial flavors and that it would be misleading to that consumer if the Product contained an artificial petroleum substrate as a flavoring—whether as a flavor itself or as a flavor enhancement.”

Reminder: Penn/NYU/Harvard Trademark and Unfair Competition Scholarship Roundtable 2026: submit by June 1

2026-05-26T10:15:41.875-04:00

Penn/NYU/Harvard Trademark and Unfair Competition Scholarship Roundtable 2026

The Trademark and Unfair Competition Scholarship Roundtable co-hosted by Harvard, NYU, and the University of Pennsylvania will take place this year at NYU. Now in its fifth year, the Roundtable is designed to be a forum for the discussion of current trademark, unfair competition, and right of publicity scholarship, covering a range of methodologies, topics, and perspectives. Five to six papers will be chosen for discussion over the course of the Roundtable, with each paper allocated an hour for discussion and assigned a commentator.

The Roundtable will be held on Friday, October 16, 2026. If there is a critical mass of papers, we may also extend the Roundtable through Saturday morning, October 17. Participation at the Roundtable will be limited and invitation-only and we expect all participants to have read the papers in advance. We will ask participants to rely if possible on research accounts to cover travel and accommodation, but if that is not possible we will have funds to cover costs.

We invite submissions from academics working on any aspect of trademark, false advertising, marketing, right of publicity, or related areas of the law. Priority will be given to those who can attend the entire event and a dinner the night of Friday, October 16. Submissions must be of full drafts in Microsoft word format. The deadline for submission is June 1, 2026. Decisions on participation will be made by June 15, 2026.

Submissions should be made by means of this Google form<https://urldefense.proofpoint.com/v2/url?u=https-3A__docs.google.com_forms_d_e_1FAIpQLSfpHCiFmcHZ6SCKp4oWYC1TDTVXC8MNxWlaw2XpMc4IF3GtHQ_viewform-3Fusp-3Dpublish-2Deditor&d=DwMGaQ&c=slrrB7dE8n7gBJbeO0g-IQ&r=JCtF1L1KFZQA400a-MfN1LbbUwey4sno6RJztdDSMVk&m=frYEnTCmkzL5dabxDGK2I-SaTfGMF9qSkTH-tqc6v8_eRDuLE2XZ1o1PydGPHvx0&s=PUCAH7B4foFMqAuRCNa6K1oA1S63rzSVKgCgIrUKF8I&e=>. If you have any questions, please contact Barton Beebe at barton.beebe@nyu.edu<mailto:barton.beebe@nyu.edu>.

mix-and-match ad campaign actionable but "instant whitening" claims were mere puffery

2026-05-26T10:14:38.045-04:00

Ledesma v. Hismile, Inc., 2026 WL 1146742, No. 24-cv-03626-KAW (N.D. Cal. Apr. 28, 2026)

Previously. Here, the plaintiffs provide enough allegations about the challenged teeth-whitening ad campaign to satisfy the court as to Rule 9 in the context of algorithmically generated ads, but still lose on puffery grounds. In essence, defendants allegedly exaggerated the teeth-whitening capabilities of their products through various means, such as unnaturally bright lighting and models who already have very white teeth, fake reviews, fake customer videos, claims of clinical proof, and claims of “color correction technology: purple and yellow are complementary colors opposite to each other on the color wheel, so purple ‘cancels out yellow undertones’ to reveal white teeth instantly.”

Plaintiffs alleged that there were thousands of ads posted on defendants’ social media accounts using the same core advertising methods, and that many advertisements “reus[e] the exact same clips in a different order, or with different actors reading similar scripts and acting out similar scenarios.” They brought California and NY claims.

Defendants argued that plaintiffs failed to identify the specific advertisements that they saw. But “California courts have recognized an exception to the requirement that a plaintiff identify the specific advertisement they relied upon ‘where a claim of fraud is based upon a long-term advertising campaign, which may seek to persuade by cumulative impact, not by a particular representation on a particular date.’ ”

The exception was satisfied here, where plaintiffs alleged that the ad campaign began more than ten years ago and saturates social media user feeds with videos, many of which reuse the same clips in different orders or with different actors reading similar scripts or acting out similar scenarios, all touting “the same false core message: that Hismile’s Products deliver ‘instant teeth whitening’ results.” Plaintiffs also sufficiently alleged their own individual exposure to this advertising campaign, including when and/or how long they saw the advertisements, what social media platforms they saw the advertisements on, more specific examples of the types of advertisements they saw, and the effect of those advertisements on Plaintiffs’ perception of the product -- namely, that the products “would produce an instant whitening effect.” That sufficed under Rule 9(b) to identify the who (Defendants), what (the advertising campaign and the types of advertisements viewed by Plaintiffs), when (the length of the advertising campaign and approximately when Plaintiffs were exposed to it), where (the social media platforms Plaintiffs viewed the ads on), and how (the allegedly false claim spread by the advertising campaign that Defendants’ products “instantly” whiten teeth).

Defendants argued that plaintiffs should have identified specific ads because they were still “readily accessible” on defendants’ social media. “But this argument only highlights the difficulty of identifying the specific advertisement; as Plaintiff points out, Defendant Hismile’s TikTok account posts at a rate of 15 or more videos a day, which results in over 1,000 videos in the span of 67 days. …To require that a plaintiff comb through hundreds to thousands of similar videos advertisements (assuming the viewed advertisement is still available) imposes a potentially insurmountable burden.” The court wouldn’t insulate high-volume social media advertising from scrutiny.

However, plaintiffs didn’t sufficiently identify the allegedly false/misleading influencers and customer reviews upon which they relied.

However, the case still had to be dismissed because “instant” whitening was puffery. (What about the clinical proof claim, above?) “Instant” wasn’t a quantifiable statement, but a general, subjective claim. Nor could plaintiffs use the duration of ads/demos during ads to show that defendants gave a definition to “instant.” That wasn’t a “binary and precise” criterion. “At what point in time would ‘instant’ no longer be an accurate description?” After all, “many things are advertised as ‘instant’ -- instant noodles, instant oatmeal, instant film, instant stain remover -- that are not literally instant but can take several minutes even if they are significantly faster than their non-instant counterparts.”

Costco's "free shipping" claims plausibly deceptive if online price is raised to account for shipping

2026-05-26T10:12:58.458-04:00

Zaimi v. Costco Wholesale Corp., 2026 WL 1145798, No. 2:25-cv-01076-JHC (W.D. Wash. Apr. 28, 2026)

The court refused to dismiss statutory and common-law claims related to price differences between items that Costco sells online and in-store: online, Costco charges more for big-ticket items like couches to cover shipping, but advertises “free shipping.” For example, one couch is available for $2,099.99 when bought in a physical Costco store but costs $2,399.99 when purchased online, and at checkout, “Shipping & Handling” is listed as “$0.00.” Within the online listing, in light grey font, Costco says that “Delivery, setup and packing removal [are] included,” and that “Items may be available in your local warehouse, prices may vary.” Also, there’s a webpage that says “Costco.com prices take into account shipping and handling fees not applicable to warehouse purchases,” but plaintiff alleged that “she was not presented with, and did not read, the fine print on Defendant’s customer service webpage admitting that those representations were false.” She brought claims under the Washington Consumer Protection Act (CPA) and California’s FAL, UCL, and CLRA, along with claims for breach of contract, breach of warranty, quasi-contract/unjust enrichment, and negligent and intentional misrepresentation, which the court declined to dismiss. I won’t discuss many of the details.

Costco argued that it disclosed the price differences and shipping costs. Online, the listing states that “[d]elivery, setup, and packaging removal included” in the stated price, and elsewhere on the website, it discloses that items are cheaper if bought in-store. Thus, believing that one would pay the same for the couch online as in the warehouse and pay nothing to have it delivered was patently unreasonable.

Zaimi rejoined that the checkout page statement, “Shipping & Handling $0.00,” induces reasonable consumers into believing they are paying $0.00 for shipping, and that general disclaimers (that items are available at a lower price in its warehouses) do not “negate the clear message that ‘Shipping & Handling $0.00’ conveys to reasonable consumers.” The court found no previous case to be entirely on point, but, at the motion to dismiss stage, this theory was plausible. The online listing didn’t state that the prices will be lower in-store: It states that the “prices may vary.” And plaintiff plausibly alleged that consumers “expect free shipping,” given the ubiquity of online shopping, even for large purchases like furniture.

As for injury under Washington consumer protection law, it was enough to allege that she “would not have made the online purchase if she had known that she was paying for shipping or that Defendant charged more for the product online.”

slack fill claims proceed because protein powder is harder to understand than cookies

2026-05-25T16:11:28.075-04:00

Cody v. Gainful Health Inc., 2026 WL 1428888, No. EDCV 25-01373-KK-SPx (C.D. Cal. May 19, 2026)

Gainful sells protein powder nutritional supplement products; plaintiff alleged unlawful slack fill. Cody bought a “28 Servings” package that “included two pouches or bags,” each weighing 14.8 ounces and “contain[ing] 14 servings per container,” and 28 “Flavor Boost” packets. Each pouch was “opaque” and did “not allow the customer to fully view its contents.” The nutrition label on the back of each pouch indicated a serving size of “1 scoop (30 g).” She saw the image online, which “depicted a totally opaque Product container that did not allow Plaintiff ... to see the fill level within such container.” The image also showed the “Flavor Boost” packets, “which indicated the far greater size of the Product’s container by comparison.” The Amazon product listing disclosed 28 servings, weight of 30 ounces, and package dimensions of 10.47 by 9.92 by 4.76 inches. But it did “not disclose any ... disclaimer such as a reference to a fill line or other caveat disclosing that the Product’s container was not packaged to be substantially full of protein powder.”

The court found the claims sufficiently pled under the relevant California statutes and common-law fraud. Cody sufficiently alleged an affirmative misrepresentation by using an opaque and “oversized” container, “which implied ... that the container had more protein powder than it actually contained,” and failure to disclose the non-functional slack fill in violation of California law.

“Because a consumer viewing the Product listing on Defendant’s online storefront has no ‘reasonable opportunity prior to purchase to shake or otherwise manipulate’ the Product to determine whether the Product’s packaging ‘is filled to the brim,’ they “may reasonably rely on the size of the packaging and believe that it accurately reflects the amount [they are] purchasing.’” Here, the packaging as depicted on the online storefront conceals that the “actual product only occupies approximately 60 [percent] of the exterior space represented by the Product’s packaging container.”

What about the quantity disclosures that did exist? First, it was unclear whether the listing included the back label, making any information on that label “irrelevant to determining whether a reasonable consumer is likely to be deceived.” Listing dimensions, weight, and number of servings “do[ ] not necessarily provide the reasonable consumer a meaningful metric for how much powder is in the container,” as a reasonable consumer is “not necessarily aware” of how a product’s weight and number of servings “correlate[ ] to the product’s size.”

Even if Cody saw the back label, deception was still plausible. Gainful cited several cases finding “no reasonable consumer would be plausibly deceived” where a package “provide[s] a consumer with a ‘rough estimate’ of the amount of final product that can be made from its contents.” But each of those cases “involved products that were discrete, countable goods, the number of which were disclosed on the label.” The instructions on the back label did not indicate how much protein powder a consumer should mix with 8 oz of milk or plant-based milk or blend with 8 oz of the consumer’s “favorite beverage.” Nor did the instructions indicate how much “Flavor Boost” a consumer should mix with milk, blend into a smoothie, or add into a baked good. While the back label suggested a consumer could “[a]dd a scoop” of the Product to their “favorite baked good recipe,” it didn’t specify the type or amount of baked goods to which a scoop of the Product should be added. Without that, a “scoop” of protein powder “is not an intrinsically meaningful metric of quantity,” even when “the consumer can calculate the approximate weight of each scoop.” As another court said: “A label that states a cannister contains 20 scoops of protein powder communicates materially less information to a consumer than a label stating that a cannister contains 20 cookies.”

She also sufficiently alleged that the slack fill was nonfunctional. It sufficed to allege that (1) “[t]here is no risk of the powder breaking or sustaining damage if there was less empty space in the Product’s container,” (2) “the machines used for enclosing the contents of the package have the capacity to add more content to the containers used to enclose the contents of the Product,” and “[a]t most, a simple recalibration of the machines would be required,” (3) “any settling” of the Product “occurs immediately at the point of fill” because of “the Product’s density, shape, and composition,” (4) the Product’s packaging “contains no instructions to consumers that they should mix together the Product’s whey protein powder with any Flavor Boost within the Product’s pouch container,” (5) “[t]he package is intended to be discarded immediately after the Product is consumed” and is not a “durable commemorative package” or “promotional package,” and (6) “Defendant can easily increase the quantity of the Product in each package (or, alternatively, decrease the size of the packages) significantly.” These plausibly alleged that none of the safe harbor provisions in California’s slack fill law applied.

contract, 230, and lack of specificity defeat "chat scam" claims against OnlyFans

2026-05-25T16:00:24.958-04:00

N.Z. v. Fenix Int’l Ltd., 2026 WL 1425183, No. 8:24-cv-01655-FWS-SSC (C.D. Cal. May 19, 2026)

Plaintiffs sued OnlyFans (Fenix) and other entities who manage OnlyFans models based on allegations that they concealed the fact that plaintiffs weren’t authentically chatting with OnlyFans models, despite the centrality of the promise of authentic personal interaction to OnlyFans. One of OnlyFans’ “Core Values” is the following: “Giving creators control to own and monetize their content and to foster authentic relationships with their followers and fanbase.” Also, OnlyFans urges Fans to subscribe to specific Creators using the following language: “SUBSCRIBE AND GET THESE BENEFITS: Full access to this user’s content [/] Direct message with this user [/] Cancel your subscription at any time.”

The agency defendants allegedly “sell their services to OnlyFans Creators with promises that they can increase a Creator’s revenue exponentially—without the Creator ever having to actually do what OnlyFans promises: ‘directly connect’ with Fans.” They allegedly “contract with ‘Chatters’ to conduct most, if not all, of the communications between the Creators and the Fans. Without the Fans’ knowledge, the Chatters impersonate the Creators when direct messaging with Fans.” “Agencies even provide Chatters with actual ‘scripts’ similar to those used by telemarketers and call center employees, which give Chatters a specific workflow to follow in order to maximize the amount of money extracted from any given Fan.”

In recent years, agencies have allegedly developed specialized tools to facilitate the use of a single OnlyFans account by a team of Chatters. Further alleged: “OnlyFans is either aware of, or intentionally ignorant to, the use of CRM software on its platform—not least because its use violates OnlyFans’ Terms of Service—but chooses to do nothing to prevent the use of this software because of the increased revenues that CRM software facilitates.” And: “OnlyFans knew, and should have known, that its Creators were using Chatters to engage with Fans— including based on the revenue being generated by those Creators; the number of direct messages with Fans; the number of different login sessions to a given Creator’s account, often from many different locations and IP addresses; and the number of Fan complaints (which OnlyFans ignored).” As a result, they alleged, “the ‘Chatter Scams’ involve massive breaches of confidentiality and privacy violations in which intimate communications and private and/or personal information about Fans—including photos and videos—are distributed and/or accessible to numerous unauthorized parties.”

Plaintiffs sought to assert various claims against OnlyFans and the agencies, including RICO, VPPA, breach of contract, fraud, and California UCL/FAL claims.

§ 230: The VPPA and RICO claims against OnlyFans were barred because they sought to hold OnlyFans liable solely for facilitating, or failing to moderate, communications through the OnlyFans platform. (The other RICO claims failed because they were RICO claims.)

However, the breach of contract claim depended on claims of breach of a contractual promise that OnlyFans “will use reasonable care and skill in providing OnlyFans” by collecting “data sufficient to identify Chatter-operated accounts—including multiple simultaneous logins from disparate geographic locations—and failed to act on this information.” That wasn’t seeking to hold OnlyFans liable solely for facilitating communications but rather to require it to ensure the users are operating OnlyFans properly and that OnlyFans acts on the simultaneous logins. (Eric Goldman will hate that!)

And, to the extent that misrepresentation claims were based on OnlyFans’ own representations that users can “ ‘direct message’ ..., chat ‘1 on 1’ ..., and build ‘genuine’ and ‘authentic’ connections” with Creators, those weren’t barred. The claims wouldn’t require OnlyFans to monitor third-party communications to avoid liability. (But the breach of contract claim would!) Anyway, although “content moderation [may be] one possible solution” for OnlyFans to fulfill its alleged duties, “the underlying duty being invoked by the Plaintiffs … is the promise” or representation itself.

VPPA: The VPPA provides that “[a] video tape service provider who knowingly discloses, to any person, personally identifiable information concerning any consumer of such provider shall be liable to the aggrieved person.” The Ninth Circuit has adopted the ordinary person standard to determine what constitutes PII, holding that “personally identifiable information means only that information that would readily permit an ordinary person to identify a specific individual’s video-watching behavior.” Under the TOS, plaintiffs agreed and acknowledged that their “[c]ontent may be viewed by individuals that recognise [their] identity” and that OnlyFans is “not in any way ... responsible” if Plaintiffs “are identified from [their] Content.” And plaintiffs failed to sufficiently allege OnlyFans’ knowledge.

However, they sufficiently pled that the agency defendants knowingly disclosed PII: they alleged that they shared personal information in chats with Creators, including their full legal name and photos of their face, and that the Chatter Scams function by “creating a communication history viewable by Chatters” which consists of “intimate knowledge of the Fan’s personal information, conversation history, and preferences,” and most importantly, “the specific content that they requested and/or viewed.” The agency defendants allegedly disclosed PII from Fans to Chatters by sharing login information or via CRM software.

Under the VPPA, “A video tape service provider may disclose personally identifiable information concerning any consumer ... to any person if the disclosure is incident to the ordinary course of business of the video tape service provider.” At this stage, that exclusion didn’t require dismissal.

Breach of contract: the statement “ ‘Direct message with this user [Creator]’ ” wasn’t part of the TOS, which contained an integration clause stating that users have “[n]o implied licenses or other rights are granted to [them] in relation to any part of OnlyFans, save as expressly set out in the Terms of Service” and that the TOS “form the entire agreement between [Fenix International] and [the user] regarding [the user’s] access to and use of OnlyFans,” and “govern [Plaintiffs’] use of OnlyFans.”

Failure to provide the platform with reasonable care and skill: It wasn’t enough to allege that OnlyFans allowed management agencies to use Chatters to impersonate Creators because this theory of liability imposed a monitoring obligation on Fenix Defendants. Nor was merely designing and providing tools for OnlyFans users sufficient to allege a breach; plaintiffs didn’t allege how tools such as Fan spending analytics and “inter-shift notes features” enable, or were specifically designed for, the Chatter Scam.

Implied covenant of good faith and fair dealing: Failed because plaintiffs sought to impose duties beyond those incorporated in the specific terms of the alleged contract.

Also, fans were not third-party beneficiaries of the Creator TOS, which required Creators to be individuals and safeguard their accounts given its express language saying there weren’t any third-party beneficiaries.

Fraud and deceit: Also failed against OnlyFans. OnlyFans made explicit disclosures about the use of third parties, its inability to control how Fan content is used, and the materials provided to Fans.

UCL/FAL: Not sufficiently alleged against agency defendants because plaintiffs didn’t allege the specific representations at issue.

CFP: Ninth Junior Faculty Forum on Law and STEM

2026-05-23T11:50:29.605-04:00

Call for Papers

Ninth Junior Faculty Forum on Law and STEM

Stanford Law School, November 6-7, 2026

The Northwestern, Penn, and Stanford law schools are pleased to announce a Call for Papers for the Ninth Junior Faculty Forum on Law and STEM, which will be held at Stanford on November 6-7, 2026. The Forum is dedicated to interdisciplinary scholarship focusing on the intersection of Law and Science-Technology-Engineering-Mathematics (STEM). We are seeking submissions from junior faculty in any discipline interested in presenting papers at the Forum. The submission deadline is June 15, 2026.

A group of junior scholars will be chosen on a blind basis from among those submitting papers by a jury of accomplished scholars with expertise in Law and STEM. One or more senior scholars, not necessarily from Northwestern, Penn, and Stanford, will comment on each paper. The audience will include the participating junior faculty, faculty from the host institutions, and invited guests. Participating junior faculty are expected to stay for the full duration of the Forum.

Our goal is to promote interdisciplinary research exploring how developments in STEM are affecting law and vice versa. Preference will be given to papers with strong interdisciplinary approaches integrating these two areas of study.

We invite submissions on any topic related to the intersection of law and any STEM field. Potential topics include (but are not limited to):

Artificial intelligence
Autonomous vehicles
Biomedical research and drug development
Biometrics
Bitcoin and other blockchain technologies
ChatGPT and large language models
Climate change technologies
Computational law and algorithmic decisionmaking
Cryptocurrency and NFTs
Digital health and health data
Genetics, epigenetics, and gene editing
Machine learning and predictive analytics
Nanotechnology
Neuroscience and law
Online security and privacy
Personalized medicine
Regulation of online platforms
Robotics
Spectrum policy
Synthetic biology
Virtual and augmented reality

There is no publication commitment. Northwestern, Penn, and Stanford will cover presenters’ and commentators’ travel expenses, though international flights may be only partially reimbursed. Authors of accepted papers are expected to attend the conference and present their work in person.

QUALIFICATIONS: To be eligible, authors must be teaching at a U.S. school of higher education in a tenured or tenure-track position or as a Visiting Assistant Professor or Fellow and must have received their first tenure-track appointment no more than seven years before the conference. Authors in tenured and tenure-track positions will be given priority. American citizens or permanent residents teaching abroad are also eligible to submit provided that they have held a faculty position or the equivalent, including positions comparable to junior faculty positions in research institutions, for less than seven years, and that they earned their last degree within the past ten years. We accept jointly authored submissions so long as the presenting coauthor is individually eligible to participate in the Forum and none of the other coauthors has taught in a tenured or tenure-track position for more than seven years. Papers that will be published prior to the meeting are not eligible. Authors may submit only one paper.

PAPER SUBMISSION PROCEDURE: Electronic submissions should be made through this website. Please remove all references to the author(s) in the paper. The submission deadline is June 15, 2026. We will notify applicants as soon as practicable thereafter whether their papers have been selected.
https://forms.gle/PPPn823V1DmYwQvP6

Any questions about the submission procedure should be directed to Professor Lisa Ouellette (ouellette@law.stanford.edu).

FURTHER INFORMATION: Inquiries concerning the Forum should be sent to Lisa Ouellette at Stanford Law School, David Schwartz at Northwestern University Pritzker School of Law, or Christopher Yoo at University of Pennsylvania Carey Law School.

Lanham Act requires less in the way of injury from competitors than California FAL/UCL

2026-05-22T09:16:35.176-04:00

Eight Sleep Inc. v. Orion Longevity Inc., 2026 WL 1243359, No. 2:26-cv-02460-SB-KS (C.D. Cal. May 4, 2026)

Eight Sleep “developed and patented the Eight Sleep Pod, a ‘bio-tracking mattress cover’ that optimizes sleep by using biometric measurements to automatically adjust the temperature of the user’s bed.” Defendant Orion developed a competing temperature-regulating mattress cover with similar features. Eight Sleep sued for patent infringement, which I will not discuss (the patent claims survive), and false advertising, which I will.

Orion allegedly made false and misleading statements about the Orion Sleep System’s features and availability, including by representing, during development, capabilities not borne out in the product released to the market, in violation of the California UCL and FAL. Orion argued that there was no statutory standing.

Both statutes “require[ ] that a plaintiff have ‘lost money or property’ to have standing to sue,” which requires the plaintiff to “demonstrate some form of economic injury.” The economic injury must also be “ ‘as a result of’ the unfair competition or a violation of the false advertising law,” which requires the plaintiff to show “a causal connection or reliance on the alleged misrepresentation.”

Eight Sleep relied on the Ninth Circuit TrafficSchool case’s statement that courts have “generally presumed commercial injury” when the parties “are direct competitors and [the] defendant’s misrepresentation has a tendency to mislead consumers.” But that decision addressed the Lanham Act, which requires only likely injury. Under the UCL and FAL, actual monetary loss is required.

The complaint only conclusorily alleged that as a result of Orion’s false advertising, Eight Sleep’s goodwill was damaged, and it “lost sales because customers who would have otherwise purchased its products, instead purchased Orion.” That wasn’t enough: “First, the law is unsettled as to whether injury derived from a customer’s reliance on fraudulent advertisements may support a false-advertising claim by a competitor who did not rely on the fraud.” Federal district courts are increasingly accepting reliance by deceived consumers rather than the competitor-plaintiff, but, even under that more permissive approach, the complaint was insufficiently detailed. Similarly, allegations Orion “repeatedly approached investors with false claims” about the parties’ products and Eight Sleep’s profits and margins, and that Eight Sleep “lost investment opportunities that would otherwise have been available from investors who would have, but for Orion’s false statements to investors, invested in Eight Sleep” didn’t identify specific misrepresentations, even if it were clear that statements to investors are actionable as advertisements under the UCL and FAL.

What about Lanham Act claims? At least one false statement was plausibly alleged: a chart purporting to compare the features offered by “Eight Sleep” and “Orion,” suggesting that Orion offered all 10 of the features listed while Eight Sleep offered only one (embedded sleep sensors). One of the features identified for Orion’s product was “5-Stage sleep tracker,” which the complaint alleges “never existed.” The false statement was posted on Orion’s during “some of the busiest shopping dates in the United States, including Black Friday.”

high sugar content doesn't make "Breakfast Essentials" name or health claims misleading

2026-05-22T09:15:24.893-04:00

Testori v. Nestlé Health Science US Holdings, Inc., --- F.Supp.3d ----, 2026 WL 1282540, No. 1:25-cv-01318-JLT-CDB (E.D. Cal. May 11, 2026)

The court dismissed California claims against Carnation Breakfast Essentials Nutritional Drink. The drink label highlighted its 10g of protein per serving, while “fail[ing] to disclose with equal prominence that the Product’s first two ingredients are water and ... 11 grams of sugar per serving.” Reasonable consumers would allegedly not expect a product marketed as ‘Breakfast Essentials’ to contain more sugar than protein.

The court first addressed preemption. Health or nutrient content claims are regulated by the FDA, but not every statement is a health or nutrient content claim. “Based on the FDA’s express decision to not recognize sugar as a disqualifying nutrient, various district courts have now adopted the finding that ‘any claim under state law solely premised on the notion that [a product’s] high sugar content made its health or implied nutrient content claims misleading is preempted.’”

In this case, the “nutritional drink” statement was right above four additional statements stating: “10g protein,” “21 vitamins + minerals,” “3x vitamin vs. milk,” and “2x calcium vs. Greek Yogurt.” The context of the packaging thus “implies that the reason that the drink is a nutrition drink is that it contains the nutrients ... listed directly below that phrase on the bottle.” In Clark v. Perfect Bar, LLC, 816 F. App’x 141 (9th Cir. 2020) (Mem.), the court said: “Allowing a claim of misbranding under California law based on misleading sugar level content would ‘indirectly establish’ a sugar labeling requirement ‘that is not identical to the federal requirements,’ a result foreclosed by our precedent.” Clark dealt with facts almost on all fours with the facts alleged here. The complaint was filled with contentions related to “health” and “nutrition.” Thus, preemption applied.

Even if it didn’t, plaintiff failed to state a claim. Although consumers should not be expected to ignore the misleading representation on the front label and discover the truth on the back label, here, “none of the challenged statements reference the sugar content of the product[ ] ... [or] even mention[ ] sugar.” Any ambiguity was cured by the accurate reporting of the sugar content on the Nutrition Facts Panel, especially because the product didn’t make any assertion about overall “health” or “balanced/healthy diet.” The product didn’t become less—or cease to be—“nutritional” due to the added sugar. The reference to “10g protein,” “21 vitamins + minerals,” “3x vitamin vs. milk,” and “2x calcium vs. Greek Yogurt” was not a claim that the product was “nutritionally balanced.” Nor did the front label mention or suggest anything about added sugar.

In a footnote, the court commented that “Modern advertisements frequently use phrases like, ‘You need this,’ ‘You have to use this,’ or ‘This is essential for your health.’ A reasonable consumer would understand the need to view such statements with a grain of salt, and not take an expansive, strenuous, and atextual interpretation of them ….”