Rebecca Tushnet's 43(B)log

Google's alleged misrepresentations about sophisticated ad tech weren't "consumer-oriented" under NY GBL

2026-10-14T16:56:01.954-04:00

In Re Google Digital Advertising Antitrust Litig., Nos. 21-md-3010 (PKC), 21-cv-3446 (PKC), 23-cv-5177 (PKC), 21-cv-7034 (PKC), 23-cv-1530 (PKC), 2026 WL 2942363 (S.D.N.Y. Sept. 30, 2026)

As the caption indicates, this is mostly an antitrust case, which means it’s amazing that a couple of antitrust theories survive (mostly the ones Google is precluded from contesting because of previous losses). I’m only going to talk about the false advertising part.

Newspaper plaintiffs brought claims that Google’s representations about its ad tech were misleading under GBL sections 349 and 350. However, no reasonable jury could conclude that Google’s alleged deceptions were consumer-oriented, as required by the GBL, so Google got summary judgment on these claims.

“[B]usiness entities can qualify as ‘consumers’ if the products or services purchased are consumer goods or their equivalent ....” And “an act or practice is consumer-oriented when it has a broader impact on consumers at large” and is not limited to products purchased “for personal, family, or household use.” But “section 349 is aimed at ‘modest’ transactions rather than complex or unique arrangements in which ‘each side was knowledgeable and received expert representation and advice.’ ”

Google pointed to evidence that the newspaper plaintiffs were “large, highly sophisticated companies with a strong understanding of the ad tech at issue, and that they entered into ad-tech arrangements tailored to their specific needs. Each has characterized itself as a ‘large publisher.’” Plaintiff Gannett’s Rule 30(b)(6) deponent described the company as “quite sophisticated” at “digital ad selling.” Gannett and plaintiff Daily Mail both stated in interrogatory responses that they “constantly monitor[ ] the performance of [their] ad tech partners” and make changes if they are not providing added value. Daily Mail has stated that it “operates a sophisticated tech stack” and that its advertising division employs “programmatic analysts,” “infrastructure experts” and more than a dozen engineers.

Thus, no reasonable jury could find that Google’s alleged deceptions about the functions of its sopisticated ad tech products were consumer-oriented activities:

These highly sophisticated and well-resourced plaintiffs negotiated and entered into agreements to use Google’s ad-tech products, which they used to sell billions of ad impressions and garner hundreds of millions of dollars in revenue. These were not “ ‘modest’ transactions” that fall under the GBL’s ambit but “complex [and] unique arrangements” that were entered into and supervised by sophisticated experts. Plaintiffs may be correct that the claimed deceptions affected many other publishers and billions of individual transactions, but it has been asserted throughout this multidistrict litigation that customers of the DFP ad server tend to be sophisticated and well-resourced publishers, in contrast to the small publishers that use Google’s simpler AdSense product. Even accepting the assertions of Gannett and Daily Mail that publishers suffered widespread harm based on Google’s deceptions about bidding practices … the sophisticated customers of DFP retained at least some ability to fine-tune and adjust the ad server’s settings to suit their needs. The magnitude of the transactions and the particulars unique to each publisher’s use of the ad tech preclude any finding that Google’s purported deceptions were consumer-oriented activity.

consumer suit against kratom seller proceeds on failure to disclose theory

2026-10-14T16:49:45.934-04:00

Cheswick v. Mitra-9 Brands, LLC, 2026 WL 2949413, No. 1:25-CV-6795-LTS (S.D.N.Y. Sept. 30, 2026)

The court allowed NY consumer protection claims against a kratom seller to proceed. Kratom is “a plant-derived substance that affects the human body in a manner similar to opioids.” Mitra-9 allegedly touts the “unique benefits” of its kratom products, advertising them as “caffeine-free, non-alcoholic, low-calorie[ ]” “plant-based beverages” that “compliment[ ][sic] active lifestyles every day,” “help [consumers] sail through [their] workday or support [their] post-workout routine,” and “support[ ] overall vitality and well-being, fostering focus and a serene approach to life’s challenges.” It allegedly advertises “the unique benefits of [its] kratom,” which comes from “the verdant rainforests of Southeast Asia” and factors into their “specially designed formula.” This so-called “Mitra9 difference” makes the products “an upgrade” from “ordinary supplement drinks” and a “perfect way to shake things up.”

However, kratom allegedly contains alkaloids that, depending on the dose, can produce either stimulating or sedating effects by interacting with numerous receptors in the brain. This includes the brain’s mu-opioid receptor, which is the receptor that “produces the most addictive or habit-forming effects.” It is allegedly similar to morphine in the risks it poses of physical addiction and dependency, with similar withdrawal symptoms, as well as in the fact that repeat users need to consume increasingly large doses to achieve the same effects. Sudden cessation of kratom use can allegedly produce severe, opioid-like withdrawal symptoms, including “irritability, anxiety, difficulty concentrating, depression, sleep disturbance, including restless legs, tearing up, runny nose, muscle and bone pain, muscle spasms, diarrhea, decreased appetite, chills, inability to control temperature, extreme dysphoria, and malaise.”

Nonetheless, most United States consumers allegedly “do not know what kratom is and have no idea how addictive it is.” Mitra-9, despite allegedly knowing the truth, does not warn them, but instead uses packaging that resembles that of commonplace products like “5-Hour Energy” shots and caffeinated energy drinks like “Redbull” and “Celsius.” The named plaintiff initially purchased Mitra-9 Products as an “alternative for pain relief,” but, after consuming them for several months, he began experiencing withdrawal symptoms including “cold sweats, anxiety, joint aches, extreme irritability, restless leg syndrome, and insomnia.”

The plaintiff pled on information and belief that Mitra-9 “interacted with growers and distributors in Southeast Asia who have disclosed the addictive nature of kratom”; “received numerous user reports about the addictive potential of kratom in the United States”; and possessed “studies regarding kratom addiction.”

The court found that a price premium theory of injury was plausible. It was logical that the class “suffered economic injury because they ... would have paid substantially less for [the Products], if they had known that the Products posed a serious risk for addiction.” This was not the same as pleading they never would have purchased the relevant products absent the deception, which is apparently not enough to plead injury.

“Where, as here, the allegedly deceptive act involves an omission, the plaintiff must show that ‘the business alone possesses material information that is relevant to the consumer and fails to provide this information,’ or that the plaintiff could not ‘reasonably have obtained the relevant information [he] now claim[s] the [defendant] failed to provide.’ ” This latter path was plausibly pled in light of allegations about the public’s general lack of familiarity with kratom, the fact that kratom was “marketed as providing benefits without disclosure of its addictive potential,” the inaccessibility or incomprehensibility of the medical literature to an average consumer, the unlikelihood that consumers would inquire about kratom when “purchasing from third parties or online,” and packaging that mimics that of well-known supplements and caffeinated energy drinks. “Within this broader landscape, a reasonable consumer contemplating a purchase of Defendant’s Products—which Defendant markets and packages as though they are innocuous health supplements—would have no reason to suspect or inquire whether they contained an opioid-like substance with serious addictive risks.”

Fraud by omission claims also survived.

Court sours on WSI's claims against Quince

2026-10-14T16:37:41.998-04:00

Williams-Sonoma, Inc. v. Last Brand, Inc., 2026 WL 2970363, No. 5:25-cv-10118-EJD (N.D. Cal. Sept. 30, 2026)

Williams-Sonoma (WSI), which also owns Pottery Barn, West Elm, and Rejuvenation, sued Last Brand, commonly known as Quince, for state and federal false advertising. The court dismissed the claims. The parties compete in the market for kitchen and home goods. “Quince advertises that it sells products comparable to those of traditional retailers like WSI, but at significantly lower prices. To accomplish this, Quince represents that it partners directly with factories to cut out the middlemen, design and produce Quince’s products, and ship the products straight to their customers—thereby passing on the savings to their consumers.”

WSI alleged that the cost savings were actually the result of cutting corners and compromising quality, making comparisons to WSI’s products false.

First, the court found that Rule 9(b) applied to the Lanham Act claim since it sounded in fraud (even though courts often don’t do this in trademark cases).

WSI alleged that Quince falsely represented that certain products were made of Global Organic Textile Standard-certified (“GOTS-certified”) cotton or organic long-staple cotton, citing a Wirecutter review that questioned the GOTS-certification of Quince’s towels, and then explained that, when reached for comment, Quince confirmed that the certification of the towels was actually under review and that it would be removed from its website. Wirecutter also questioned the GOTS-certification of Quince’s bedsheet sets, but later verified this certification, and expressed skepticism at statements on Quince’s website that its bedsheet sets were made of “organic long-staple cotton” based on a sustainable-fashion expert’s opinion that it is impossible to have cotton that is both organic and long-staple.

WSI relied only on the Wirecutter article, which didn’t satisfy Rule 9(b). It didn’t explain “when, where, or what Quince said as to the GOTS-certification of its towels. As to the bedsheets, the statements made in the Article alone are insufficient to plausibly allege the falsity of the bedsheets’ GOTS certification or Quince’s claim that the bedsheets’ cotton is both organic and long-staple.” Wirecutter’s skepticism was insufficient; neither the expert it talked to nor WSI allegedly actually tested Quince’s cotton or investigated its origins. The article even said that GOTS confirmed the certification, and anyway WSI didn’t point to any Quince ad making the challenged representation. A false advertising claim can’t be based “solely on statements made in a sewn-in label that a consumer would not see until after purchasing the product, as such labels are not considered advertising.”

example Beyond Compare chart

Quince provides a “Beyond Compare” chart on many of its product webpages, providing a side-by-side comparison of each product’s price, delivery cost, provision of warranty, and other considerations. WSI argued that Quince’s charts were literally false because they state or imply that Quince sells the same products that WSI sells but for less. The court found that they didn’t. There was no express statement that the products were the “same,” nor a clear implication. The charts “simply compare the two companies’ products (as well as those of other companies) side-by-side and indicate how the products are similar but also different.”

“Like” Pottery Barn/West Elm/Williams Sonoma statements, e.g. “Like Pottery Barn rugs, but half the price”: Similarly, “like” means “similar to.” It was implausible that a reasonable consumer would conclude based on these “like” statements that Quince and WSI sell identical products.

“Plus, it’s 50% less than other brands for the same product.”: In an Instagram ad, a woman states that “I couldn’t justify spending $300 on bedding at Pottery Barn,” and that she purchased a duvet cover from Quince because “it’s 50% less than other brands for the same product.” WSI alleged that this was literally false, but the court agreed with Quince that, in context, it wasn’t literally false. Among other tings, overlaid text in the ad states that Quince’s duvet cover is “50% LESS than Pottery Barn and [Restoration Hardware],” and reasonable consumers know that Pottery Barn and Restoration Hardware, which are separate companies, sell distinct products. Thus, one “reasonable interpretation of this ad is that Quince sells the same type of product—i.e., duvet covers—as WSI but not the exact same products.” And WSI didn’t allege facts showing misleadingness.

Also, WSI didn’t allege facts to support its conclusory assertion that Quince’s products were inferior. It cited only a single customer review describing a Quince Sectional as being not “comparable to ... [Pottery Barn]” and states “in this case you truly get what you pay for.” “The Court cannot plausibly infer from a handful of negative reviews that Quince’s products are of inferior quality, particularly in light of the number of positive reviews and without any facts as to the comparable quality of WSI’s products.” Even if WSI had alleged such facts, it didn’t plausibly allege deception from “one lone customer review,” who might not even have been misled themselves.

WSI’s claim that the Beyond Compare charts falsely magnify the savings consumers can expect by purchasing from Quince also failed. For example, Quince advertised a handwoven jute rug that it sells for $299.90, and listed a Pottery Barn rug in the Beyond Compare chart as selling for $599.90. WSI alleged that Pottery Barn’s “Haven Jute Braided Rug,” with similar attributes as Quince’s rug, actually costs $399. Quince responded that that rug was not handwoven, as Quince’s was, and that Pottery Barn’s $599 “Delmont” rug had the same attributes as Quince’s rug and is handwoven. Moreover, the charts disclose that Quince gathered competitor pricing information within a specific timeframe and that pricing is subject to change. WSI argued that this disclosure was an admission that the listed competitor pricing was false and misleading, but the court didn’t agree.

“That WSI points to other similar WSI products with lower prices does not make it plausible that Quince advertised false prices. Nor has WSI pled specific facts to show that a reasonable consumer would be misled into believing that WSI sells no other similar products, at lower or higher prices, than the WSI product listed in Quince’s chart.” Without falsity, there was no need to consider any effect of the disclosure, but it wasn’t an admission of falsity.

Similarly, it wasn’t false not to identify a specific competing WSI product, and WSI’s argument that Quince didn’t substantiate its claims of sameness was irrelevant because lack of substantiation can’t support a private plaintiff claim.

Finally, WSI alleged that Quince misrepresented its product reviews: an ad stating “[Quince’s] Duvet Cover Set Has 1,000+ 5-Star Reviews” was allegedly literally false, and another stating that “200,000 5-star reviews can’t be wrong” was both false and misleading. In addition, WSI alleged that Quince misleadingly rounded up the average number of stars received by a product. For example, Quince’s representation of “***** (447 REVIEWS)” at the top of its duvet cover set product page allegeldy falsely implied that the product received 447 five-star reviews, but the average rating was 4.7. And customers can earn points for leaving reviews; they can redeem 1,000 points for $10 off. This is allegedly false and misleading “because Quince fails to disclose that its reviews are incentivized.”

WSI alleged that the duvet cover set actually had fewer than one thousand five-star reviews in September and October 2025, when the ad was running. Quince’s factual dispute (it argued that WSI miscounted) didn’t matter for plausibility, but WSI failed to plead facts showing materiality or injury.

As for “200,000 5-star reviews can’t be wrong,” which was allegedly false because the Quince cookware set depicted in the ad only had 37 reviews, the court agreed that one plausible meaning was that it referred to all Quince product reviews. It was also plausible that it was misleading, but WSI didn’t plead facts showing misleadingness.

As for rounding up product ratings, the court found that additional context proximate to the “5 star” statements clearly showed that the product received an average of 4.7 stars. “The exact product rating is conveniently available to customers before visiting the product page, as well as displayed at the top of the review section of each product page itself. It is, thus, implausible that most reasonable consumers would not understand that the stars displayed at the top of the product page are rounded and be misled given the surrounding context.”

Review incentives: Quince argued that customers receive the incentive simply by writing a review, regardless of whether the review is positive or negative. And Lanham Act claims have to involve affirmative statements, not pure failure to disclose.

As for unpled falsity, the different kinds of falsity alleged by WSI failed to plausibly allege that “all of Quince’s false advertisements are similar such that the Court can consider them as a whole. Nor does the Court find that WSI has sufficiently alleged representative examples of this larger fraudulent scheme under Rule 9(b)’s heightened particularity requirements.” To be sure “WSI need not plead every instance of Quince’s alleged false advertising,” but the current complaint didn’t offer “any parameters or limitations as to this amorphous false advertising scheme” that would put Quince on notice of the claims against it. “Nor is Quince better situated to know the content of all of its advertisements, as Quince’s website and advertisements are publicly available.”

The court did find that WSI had standing under California consumer protection law, reasoning (correctly in my view) that although UCL etc. false advertising liability requires that the consumer rely on the false advertising, it does not require that the plaintiff do so as long as there is harm causation.

consumer false advertising plaintiffs can't use surveys the way competitors can

2026-10-13T15:58:02.180-04:00

Sinatro v. Barilla America, Inc., No. 22-cv-03460-ASK (N.D. Cal. Sept. 30, 2026)

Deception of a substantial number of reasonable consumers, even well less than a majority, can be the basis of Lanham Act liability. But consumer protection cases have difficulty handling this, and so they make up all-or-nothing tests. Here, that means nothing.

closeup on challenged claim

Sinatro sued Barilla for the usual California claims, alleging that the claim “Italy’s #1 Brand of Pasta” on its boxes deceived consumers into thinking it was made in Italy from Italian ingredients when, in fact, that pasta was made in the United States from non-Italian ingredients. (This claim has now been removed.) On each of the relevant boxes, the side label with nutrition facts also included the representation “Made in the U.S.A. with U.S.A. and imported ingredients” in white text directly beneath Barilla’s name and location, which are statements required by FDA regulation.

side disclosure

nutrition panel

In Sinatro’s survey, 57 percent indicated that the statement “does communicate” that “[t]he product’s ingredients are sourced from Italy,” 32.3 percent indicated that the statement “does not communicate this,” and 10.7 percent selected the “Don’t know / not sure” option. A separate conjoint survey found a 9.9% price premium associated with the claim.

plaintiffs' survey prompt

Barilla’s survey replicated Sinatro’s but included five—instead of just one—possible interpretations. In response, 84.0 percent of respondents answered affirmatively for “[t]he brand is the most popular pasta brand in Italy,” while 42.3 percent did so for “[t]he product’s ingredients are sourced from Italy.” Perhaps unsurprisingly, Barilla’s surveyor decided to remove certain “inattentive” or “confused” respondents from the sample, reducing the 42.3 percent “from Italy” figure to either 34.2 or 27.5 percent, depending on how you counted, whereas the 84.0 percent “most popular” figure remained nearly unchanged (dropping only to 83.5%).

Barilla survey prompt

I would note that these reduced figures are more than enough to win a Lanham Act false advertising claim. Also, the reduction came from counting misunderstandings of other claims, which is one way of declaring a bunch of actual consumers to be unreasonable. (The 34.2 percent figure comes from eliminating respondents who indicated that a “[n]on-GMO” label means that the product is gluten free, while 27.5 percent comes from eliminating these same respondents and also those who indicated that the Challenged Representation means that “[t]he brand is the oldest producer of pasta in Italy.”)

Did the survey even matter? Front-of-product deception is actionable under consumer protection law despite qualifiers on the side panel, but only if the front is “unambiguously” deceptive. This isn’t the Lanham Act concept: a front label is not “ambiguous” “simply because it is susceptible to two possible meanings” but rather “when reasonable consumers would necessarily require more information before reasonably concluding that the label is making a particular representation.” That is, reasonability is interposed as a separate, normative screen, regardless of what a substantial number of consumers actually think.

The court excluded plaintiff’s survey under Daubert. (Again, there’s plenty of Lanham Act precedent, but courts tend not to cite across regimes, which given the different meanings of “ambiguous” is probably overall a good thing, though a comprehensive harmonization would also be welcome.) The court found the consumer perception survey biased (and also criticized the conjoint analysis because it “impermissibly measures the undifferentiated impact of all interpretations of the Challenged Representation without isolating the impact attributable to only misleading interpretations”).

The survey asked only whether the package conveys that “[t]he product’s ingredients are sourced from Italy,” and provided only three possible responses: an affirmative answer, a negative answer, and “[d]on’t know / not sure.” This was biased because by only asking that one question, the survey steered respondents “to that very meaning and gives them no opportunity to indicate other meanings.” This seems inconsistent with most Lanham Act survey cases, which generally (1) allow questions about specific messages, at least after an initial “did the ad say anything about?” question, and (2) treat offering yes/no/not sure options as enough to avoid impermissible leading.

The court also held that the survey “fails to capture the possibility that respondents understand the Challenged Representation to have multiple meanings,” and thus couldn’t assist the trier of fact. The don’t know/not sure option wasn’t enough because the survey design “bias[es] the survey by suggesting to respondents, at least implicitly, that they should believe there is at least some sort of relationship between the different items when the possibility might not even have occurred to the vast majority of consumers who see the items.”

Survey respondents who answered [the] question affirmatively might have never made an association with Italian ingredient sourcing had the survey not fed it to them. And respondents who normally would think the statement means something else entirely may have abandoned that opinion upon intuiting from the survey itself what they should take the Challenged Representation to mean. A “[d]on’t know / not sure” option does not negate such effects, because the question by its design elicits them before respondents even go to choose an answer.

Query: Under this analysis, is any closed-ended question allowable?

Without the survey, “no reasonable juror could conclude on the remaining record evidence that ‘members of the public are likely to be deceived.’” Named plaintiffs’ testimony wasn’t enough because, “[a]lthough surveys and expert testimony regarding consumer expectations are not required, a few isolated examples of actual deception are insufficient.”

To the extent that the words “Italy’s #1 Brand of Pasta” make a claim about brand—namely, that Barilla is the foremost brand of pasta in Italy—undisputed record evidence showed that Barilla had leading market share, and the court also found this the most plausible meaning.

So, would consumers necessarily require more information before concluding that the pasta was Italian in origin? The court rejected the most “plaintiff-friendly” reading of 9th Circuit precedent, which would find ambiguous only those labels that “ma[k]e no representation at all” or, like “Nature Fusion,” “[are] so devoid of any concrete meaning that there [is] nothing from which any inference could be drawn or on which any reasonable belief could be based.” That would make ambiguity essentially a puffery defense. The court wasn’t willing to do that; to do so would mean finding the front label ambiguous “because it is at least amenable to the (undisputedly false) meaning that the Plaintiffs here advance—i.e., that the pasta is made in Italy with Italian-sourced ingredients.”

But using this standard “would effectively mean that any label susceptible to at least one concrete false meaning would be actionable.” [Note that this is in fact the rule in Lanham Act cases, where a substantial number of reasonable consumers would receive this message as shown by acceptable evidence of actual consumer reception. This is because Lanham Act plaintiffs are allowed to aggregate consumer behavior even if we accept substantial variation among consumers; probabilistic liability is ok for them, whereas consumer plaintiffs must rely on a presumption that all consumers are likely to be deceived, so courts set the standard higher (even though that’s not strictly logically entailed).] Anyway, to do so would be inconsistent with Trader Joe’s, which found that “100% New Zealand Manuka Honey” could support multiple meanings, including such false meanings as “that its contents were 100% derived from the Manuka flower.”

Thus, Barilla’s front label was ambiguous, and the survey, even if admissible, didn’t address ambiguity and even reinforced the conclusion that the brand popularity meaning was the predominant one. “[A] reasonable consumer would necessarily require more information before concluding that the statement should instead be understood to mean something else entirely. Accordingly, Barilla has made no ‘unambiguously deceptive’ claim.” And the side label clarified US origin, making it not misleading as a matter of law.

The court further justified its holding as providing an easily administrable rule to lower courts and clear guidance to retailers. “[S]ellers may have confidence that so long as they do not make ‘unambiguously deceptive’ statements on their front labels, they may rely on their back and side labels to clear up misunderstandings.” And if consumers unreasonably persist in being fooled, so much the worse for them!

Schedule A false advertising TRO dissolved for the defendants who showed up

2026-10-13T09:08:00.000-04:00

Kiel James Patrick, LLC v. Partnerships & Unincorporated Associations Identified on Schedule A, 2026 WL 3015613, C.A. No. 25-cv-633-MRD-AEM (D.R.I. Oct. 7, 2026)

KJP filed a Schedule A claim against a bunch of defendants for false designation of origin/false advertising; many defaulted, while two answered and got the TRO against them dissolved.

KJP sells seasonal and festive sweaters; defendants sell competing sweaters. The defendants argued that particularized review of the claims against them was appropriate; KJP disagreed, arguing that the defendants delayed unduly and pointing to the allegations the court had previously accepted in granting and extending the TRO, which thereby became a preliminary injunction. The court was not impressed by KJP’s argument.

False designation of origin: KJP failed to show that the answering defendants used its photos. KJP alleged that, even if they didn’t copy the photos exactly, they re-generated them using AI. (Why this would violate the Lanham Act, especially given Dastar, is left as an exercise for the reader.) The basic problem was that there was no evidence “that the challenged images were copied from [KJP’s] website, altered from [its] photographs, or generated by AI to impersonate [it].” Instead, the answering defendants offered product-image evidence from an “independent sourcing agent, 1688.com,” as their source. “A review of Plaintiff’s website further reveals that the images submitted by the Answering Defendants look dissimilar to Plaintiff’s advertising materials, even if there is some similarity between the sweaters.” That similarity wasn’t confusion about origin.

False advertising: This was the same theory that defendants used KJP’s advertising materials, particularly its website images, without permission. KJP argued that defendants sold “imitation” products. But that’s not a false representation, nor does it show consumer deception. “Furthermore, there is no evidence on the current record that the Answering Defendants copied Plaintiff’s trademarks or made a particular claim about their products that is verifiably false or misleading.”

As Eric Goldman has often noted about Schedule A cases, these allegations, at least as to these defendants, should have been thin enough to deny the TRO; the plaintiff apparently didn’t supply convincing pictures even when challenged to do so.

dismissal of NYC's consumer protection claims against fossil fuel companies affirmed

2026-10-13T08:56:00.000-04:00

City of New York v. Exxon Mobil Corp., 2026 WL 3023932, Appeal No. 6583, --- N.Y.S.3d ---- (App. Div. Oct. 8, 2026)

False advertising claims against fossil fuel companies for contributing to climate change are hard to win. The City alleged that defendants engaged in “deceptive ... trade practice[s]” proscribed by the City’s Consumer Protection Law (CPL) “by misrepresenting the purported environmental benefits of using their fossil fuel products” (“product greenwashing”) and “by creating a misleading impression of the role of renewables [i.e., renewable energy] in their businesses” (“corporate greenwashing”). The appellate court affirmed the dismissal of the claims.

Product greenwashing: The alleged deceptiveness came from failure to disclose that fossil fuels contribute to climate change, but the connection was already public information. If, as alleged, consumers care about fossil fuels’ contribution to climate change, they couldn’t be duped by failure to disclose. This was true even if the court didn’t apply the reasonable consumer standard but rather the older standard: the effect the statement would have upon a consumer falling within the ranks of “the ignorant, the unthinking and the credulous who, in making purchases, do not stop to analyze but are governed by appearances and general impressions.” “Because the statements at issue disclose that the improved products are gasoline, even unsophisticated consumers – given the City’s foundational assumption of near-universal understanding of the link between gasoline use and climate change – would necessarily understand that use of the improved products contributes to climate change.” Comparative statements that improved products would produce fewer emissions than other gasoline products could not “lead even an incautious consumer to understand defendants to be representing that the environmental impact of use of the new products to power private vehicles would be comparable to the impact of taking public transportation, bicycling, walking, or using electric or hybrid cars.” Nor were defendants required to quantify the reduction in emissions in their ads. “Nor has the City come forward with evidence that the reduction in emissions made possible by the gasoline products at issue is so minute, as compared to other gasolines, as to be legally insignificant.”

As to the corporate greenwashing claim, the court concluded that the complaint did not sufficiently allege that the statements were “made in connection with the sale” or “offering for sale” of “consumer goods or services” “because none of the clean alternative energy products referenced in the statements were sold to consumers, either in New York or anywhere else.”

Although the CPL bans conduct that “has the capacity, tendency or effect of directly or indirectly deceiving or misleading consumers,” “[e]ven an allegation that a statement has the tendency to indirectly deceive a consumer must still be ‘made in connection with the sale’ of a consumer good or services” to fall within the scope of the prohibition.

would-be competitor lacks Lanham Act standing

2026-10-13T08:45:00.000-04:00

Onego Bio Inc. v. Clara Foods Co., 2026 WL 3033777, No. 1:25-cv-01131-JDW (D. Del. Oct. 9, 2026)

Onega Bio sought a declaratory judgment that defendant EVERY’s patent covering recombinant ovalbumin protein was invalid and unenforceable and that Onego didn’t not infringe the patent, but there was no imminent, substantial controversy between the parties. I’ll focus on the also-failed Lanham Act false advertising claim.

Onego, according to the complaint, “specializ[es] in the production of animal-free egg proteins through precision fermentation” and “aims to revolutionize the food industry by offering sustainable and ethical alternatives to traditional egg products.”

“In 2024, Onego secured funding to scale-up production and expand its market presence in North America.” It plans to build a 130,000-square-foot facility in Wisconsin to produce its protein product. “As part of Onego’s expansion efforts in the United States, Onego has shipped its protein products here.”

EVERY competes in the market for animal-free egg proteins (using yeast instead of Onego’s fungi). EVERY allegedly made false representations about its own product by claiming in press releases and presentations that the egg protein it makes is “equivalent,” “bio-identical,” and “nature-equivalent” to what is found in natural eggs, while allegedly EVERY’s egg protein in fact contains up to 13 amino acids not found in natural egg protein, including amino acids from yeast proteins.

The court held that Onego lacked statutory standing; it didn’t plead injury to commercial sales in more than conclusory fashion. The complaint didn’t allege that Onego makes or sells its products in the United States. Shipping protein products into the US wasn’t enough, given that Onego hadn’t even broken ground on its planned production facility. “At most, Onego’s allegations suggest that it hopes to enter the U.S. market and become EVERY’s competitor. Thus, there is no basis for me to presume that Onego suffered a commercial injury.”

Nor did reputational harm claims fare better. Onego didn’t plead facts supporting its assertion that EVERY’s claims about its own product harmed Onego’s reputation. Nor did alleged risk to the egg protein replacement market as a whole state a cognizable injury, even if that market is nascent.

candy buyers fail to allege difference between pumpkin & Jack-o'-lantern shape

2026-09-22T13:40:59.603-04:00

Vidal v. Hershey Co., No. 24-60831-CIV-DAMIAN, 2026 WL 2730302 (S.D. Fla. Sept. 16, 2026)

Reese's Peanut Butter Pumpkins with carved face on package

actual candy

There’s a Reese’s Peanut Butter pumpkin. It was advertised with a Jack-o’-lantern package, but the actual pumpkin-shaped chocolate had no such face. The package that says, in all capital letters: “DECORATING SUGGESTION.” (So you’re supposed to carve off little strips of chocolatey coating? With what tools? Hope your house is really cool, given the pliability of the coating at room temperature!) It is possible to make chocolates with molds that would give them Jack-o’-lantern faces.

Jack-o'-lantern molds for candy

Plaintiffs sued for false advertising under the Florida Deceptive and Unfair Trade Practices Act (FDUTPA).

The court found lack of standing due to lack of injury in fact. “A plaintiff may establish a concrete injury-in-fact under a benefit-of-the-bargain theory by showing that they paid for a product but received something of lesser value or that was completely worthless.” FDUTPA “does not provide for the recovery of nominal damages, speculative losses, or compensation for subjective feelings of disappointment.”

Plaintiffs didn’t that the Reese’s Peanut Butter Pumpkins they purchased were not edible or that they suffered any side effect, health issue, or harm from consuming the product. Nor have did they allege that the sale of the Peanut Butter Pumpkins was illegal. So there was no benefit-of-the-bargain injury.

This was true even though plaintiffs alleged that they purchased the products at issue “for the novelty/party-display value of the depicted faces, not merely for generic chocolate-and-peanut-butter candy.” Still, “their only injury is their subjective disappointment.” And the disclaimer “DECORATING SUGGESTION” was next to the image of the carved chocolate pumpkin; while the product may not have the “cool looking carving of a pumpkin’s mouth and eyes,” it does have “a novel pumpkin shape.”

A price premium theory also failed despite allegations that, “[i]n retail commerce, Reese’s Peanut Butter Pumpkins are priced higher per ounce than regular Reese’s Peanut Butter Cups across mainstream retailers and the manufacturer’s website.” But they only alleged a price premium at Target, Walmart, and Hershey’s, not at Publix where they bought. (This seems like a perfectly reasonable inference, though, and plaintiffs did allege that this was representative. Ah, the manipulability of Twiqbal.) But also, that still didn’t show economic injury, because plaintiffs still received candy actually shaped like pumpkins, which could also justify a price premium.

Amicus in section 230 false light case

2026-09-17T08:43:00.000-04:00

The EFF, Eric Goldman, Jess Miers, Mark Lemley, and I filed a brief in Does 1-10 v. Freesites in the Fourth Circuit, arguing that context--the other third-party content surrounding a post--cannot be the basis for a false light claim against a host site.

Amicus in Rise & Shine

2026-09-16T12:38:43.565-04:00

I've submitted a brief on behalf of trademark scholars in support of neither party.

Summary of argument:

The issue before the Court is whether trademark strength in a likely confusion analysis is a question of fact or a question of law, but this question actually bears on the confusion inquiry as a whole. Sometimes, factual issues predominate in this consideration, but sometimes legal issues do.

This conclusion may sound surprising given the phrase “likelihood of confusion,” which sounds empirical. The full version of the standard—likely confusion among a substantial number of reasonable consumers—clarifies that normative legal judgments (what is substantial, what is reasonable, and what constitutes confusion) are crucial to infringement inquiries. Infringement inquiries therefore are mixed questions of law and fact in which legal analysis can often predominate.

The hallmark of fact finding that deserves appellate deference and clear-error review is individualized adjudication. The multifactor framework to assess likelihood of confusion that courts have regularly used in the 80 years since the enactment of the Lanham Act involves propositions that sound factual, but that have never—not in this case, nor in any other—been tested by factfinding at the district court level.

This includes the question of trademark strength. The theory that “suggestive marks are conceptually stronger than descriptive marks with secondary meaning, thus favoring the plaintiff more in the confusion inquiry,” is not an “adjudicative fact” found by the factfinder based on individualized evidence.

Contrary to some suggestions in Petitioner’s brief, conceptual strength inquiries do not involve direct investigation of consumer understanding of the extent to which a word functions to indicate source when applied to a product. Conceptual strength is partly empirical (involving an assessment of, inter alia, dictionary definitions and other marketplace uses) and partly a matter of prediction about whether people will need to use “imagination and thought” to connect a word with the goods or services at issue. No trademark is “suggestive” or “descriptive” as a state of nature; Judge Friendly accepted that his division was “rough[]” at best. Abercrombie & Fitch Co. v. Hunting World, Inc., 537 F.2d 4, 9 (2d Cir. 1976).

Furthermore, the propositions that suggestive marks are “stronger” than descriptive marks with secondary meaning, and thus that, all else being equal, a mark’s status as suggestive makes confusion more likely than if it were descriptive, are broad claims about reality.

Courts evolved the multifactor confusion test over time, and they are still adding variations for new situations—as they should be. As with many torts, the existence of trademark infringement (given a set of adjudicative facts) is a classic mixed question of law and fact. No resolution of this case should treat either likelihood of confusion or trademark strength as a purely factual question.

it's hard to get rid of a foreign TM owner's complaint at the motion to dismiss stage despite territoriality

2026-09-04T12:24:48.259-04:00

Honest Greens Barcelona, S.A.U. v. Poky’s LLC, 2026 WL 2593358, No. 4:24-cv-07023-JD (D.S.C. Sept. 2, 2026)

Honest Greens operates restaurants in Spain and Portugal under the HONEST GREENS name and related marks; it owns registrations for HONEST GREENS in several foreign jurisdictions, and allegedly developed substantial goodwill through restaurant operations, advertising, digital platforms, and social media. It also alleged “substantial contact with United States consumers” by selling meals to customers from the US. It also alleged that it marketed its services to United States consumers; received tens of thousands of visits to honestgreens.com from United States IP addresses; since 2021, has attributed at least seven percent of its sales to customers using United States-based credit cards; identified more than 36,000 United States-based users who have downloaded its mobile app; and has approximately 8,000 United States-based users following its HONEST GREENS Instagram account. The app permits users, including travelers in the United States, to place an order in advance for collection at one of HG’s European restaurants.

Poky’s allegedly uses the domain name <honestgreens.us>, a website, a mobile application, and the Instagram username HONESTGREENS.US to promote a Myrtle Beach restaurant operating under the HONEST GREENS name. The complaint alleged consumer confusion, including a message asking, “Same menu as honest greens abroad?” and another reporting, “I’ve placed this order but it got sent to the wrong location in Myrtle Beach.”

For statutory standing, Poky’s noted that HG didn’t allege that a consumer chose Poky’s Myrtle Beach restaurant instead of an Honest Greens restaurant in Spain or Portugal, and that one or two instances of online confusion are too isolated to establish a plausible causal connection with harm to HG. This might be true later on, but at the pleading stage HG did enough. It alleged a US-facing commercial reputation as well as injury to that reputation from the allegedly confusing restaurants, which sufficed for proximate causation.

Although Belmora cautioned that “[a] few isolated consumers” who merely confuse a domestic mark with one seen abroad, without additional misleading conduct, would rarely state a viable claim,” HG alleged additional conduct including use of the .us domain when HG’s identical .com domain was unavailable for the same general category of restaurant services and an alleged specific intent to deceive consumers as to source or sponsorship. “Whether Plaintiff can prove intentional copying, meaningful United States goodwill, or material confusion is a later question.”

Poky’s also argued that, without US restaurants, HG could obtain neither an injunction (Dawn Donut) nor damages. True, the relevant cases make geographic market separation “highly relevant, particularly to likelihood of confusion and territorial injunctive relief, but they do not establish the categorical rule Defendant proposes.” Again, a motion to dismiss did not determine whether the evidence could ultimately show “sufficient confusion, market penetration, or reputational injury.”

However, because false advertising requires more evidence than trademark infringement, the false advertising claim failed. The complaint didn’t identify a false or misleading statement of fact or a misrepresentation of a specific characteristic or quality, nor did it allege materiality.

An ACPA claim over the domain name also survived because the complaint plausibly alleged a bad faith intent to profit. At this stage, it was enough to allege Poky’s knowledge of the mark, intent to infringe, and confusing similarity, even though Poky’s use of the domain name to operate a real restaurant “may be relevant to the totality of the circumstances and to Poky’s contention that it is a legitimate concurrent user.” “[T]he pleaded consumer diversion facts, not mere knowledge of the .com domain or similarity of names, are what permit the ACPA theory to survive at the pleading stage. Whether the proof ultimately shows only ordinary infringement rather than cybersquatting remains for the developed record.”

And HG didn’t need to plead a South Carolina registration to bring common-law claims.

dct strikes down California's new recyclability law on vagueness/1A grounds

2026-09-02T15:10:20.710-04:00

California League of Food Producers v. Bonta, 2026 WL 2055589, No. 3:26-cv-01675-WQH-BLM (S.D. Cal. Jul. 14, 2026)

Trade associations challenged a California law about recyclability claims; the court found it unconstitutionally vague and also unconstitutional under Central Hudson. Basically, the law provided that using a recycling symbol would be deemed deceptive or misleading “unless the product or packaging is considered recyclable pursuant to statewide recyclability criteria and is of a material type and form that routinely becomes feedstock used in the production of new products or packaging.” Something would be deemed recyclable if it was collected by jurisdictions including least 60 percent of the population of the state and processed by facilities that serve 60 percent of recycling programs statewide. But the standards for “routinely becoming feedstock” and other key terms were too vague, even for an economic regulation; there was no scienter requirement to mitigate its harshness. The state’s own reporting disclaimed comprehensiveness. Defining a consumer good as “recyclable” if it can be “conveniently recycled” in California counties with more than 300,000 people offered no guidance as to what recycling programs satisfy the “conveniently recycled” requirement. Reference to outside guidance like the Basel Convention also wasn’t specific enough to provide guidance.

Reference to the APR Design Guide for plastic packaging “does not correspond to other language in the statute because a product or package design that is ‘detrimental to recycling’ or ‘needs improvement’ may reasonably be understood as precluding recycling of that material”—or not. “Constitutional concerns regarding fair notice and standardless enforcement are heightened here because, under California law, the APR Design Guide provision may be enforced by private individuals and local governmental actors and may result in criminal sanctions.” Plus, the Guide described itself as “dynamic” and subject to change as “packaging technologies evolve.” “Manufacturers are left without statutory guidance not only as to whether their compliance will be measured at the time of design, manufacture, or sale of their packaging, but also without reliable information regarding which version of the APR Design Guide will apply. The record indicates that the APR Design Guide has been repeatedly revised after the enactment of [the new law].” Even if the date of design was key, there was vagueness in determining when a package was “designed.”

Similarly, requirements that “plastic products and non-plastic products and packaging” must be “designed to ensure recyclability and [must] not include any components, inks, adhesives, or labels that prevent the recyclability of the product or packaging” were too vague. Determining what “prevented” recyclability requires consideration of not only recycling technologies, but also whether it is “economically feasible” for recycling facilities to ultimately process those materials into feedstock. The court severed all the challenged provisions.

Unsurprisingly, then, the Central Hudson challenge also succeeded. The law directly regulated commercial speech: “environmental marketing claim[s], whether explicit or implied” related to products and packaging.

The legislature couldn’t just declare use of recyclability claims inconsistent with the government’s definition of recyclability to be inherently misleading. [Now do gas mileage calculations.] In the context of recyclability, where there were a lot of variables about local practices, the term was only potentially misleading, not inherently misleading.

California identified two primary government interests: reducing consumer confusion and improving recycling rates. These were substantial.

Did the regulation directly advance those interests? “To satisfy its burden, California must provide evidence establishing that the harms it recites are real and that its speech restriction will significantly alleviate those harms.” However, this does not “require that ‘empirical data come ... accompanied by a surfeit of background information ... We have permitted litigants to justify speech restrictions by reference to studies and anecdotes pertaining to different locales altogether, or even, in a case applying strict scrutiny, to justify restrictions based solely on history, consensus, and ‘simple common sense.’ ”

Under Ninth Circuit precedent,

[A] state can invoke ‘common sense’ only if the connection between the law restricting speech and the government goal is so direct and obvious that offering evidence would seem almost gratuitous. But as the government’s justifications for a regulation become more attenuated, bare appeals to common sense quickly veer into impermissible speculation. In such cases, the state needs to provide evidence to substantiate that its law will meaningfully further its stated objectives.

Plaintiffs argued that uncertainty would chill recycling claims, contrary to the state’s objective. California responded that it was trying to address a different problem: “cross-contamination in recycling streams, which makes recycling less effective.” This process “weakens the recyclables market” by increasing the cost to reclaim materials and reducing the value of contaminated “plastic lots.” But the record didn’t support the government’s position that enforcement would reduce the total amount of material that is deposited into landfills.

The evidence showed that “California faces serious difficulties in efficiently recycling consumer products and packaging, at least with respect to those made of plastic.” And there was evidence that “consumers’ attempts to recycle materials, especially plastic bags, are detrimental to the recycling process because—as a matter of practice—recycling facilities are unable to process these materials and turn them into feedstock that can become new products and packaging.” Thus, “elimination of contaminated materials from recycling streams would benefit the operations of recycling facilities and result in a greater portion of their collected materials being turned into feedstock. But the evidence in the record indicates that … this benefit to recycling facilities would come at the cost of increasing the amount of materials placed in landfills.” Plaintiffs submitted declarations from members stating that the law would require them to omit truthful statements regarding recyclability from their products and packaging, which will result in materials that would otherwise be recycled going to a landfill. California conceded that this would be a short-term effect, but argued that manufacturers would respond by redesigning; this was speculative given manufacturers’ declarations that instead recycling claims would be omitted entirely. “While these declarations are self-serving, Defendant offers no evidence to counter them.”

What about consumer confusion? Plaintiffs argued that consumers would be deprived of “accurate, qualified recycling instructions” for products and packaging that are capable of being recycled. True, there was evidence that consumers lack adequate information about which products to recycle. And the court assumed that “consumers read and consider recyclability claims on products and packaging during their purchasing decisions and at the time that they discard the products and packaging.” But the record was conflicting on whether the law would improve accuracy. Presumably, standardizing the requirements would “facilitate California consumers’ ability to trust that, if a product or package is labelled as recyclable, it will be recycled and turned into feedstock if they place it in the appropriate bin.” And information about recyclability is presumably difficult for consumers to obtain without relying on manufacturers’ representations. But there was also evidence that manufacturers would forgo some recyclability claims, leaving consumers with less information, including “truthful and genuinely helpful information, such as a listing of which areas accept the product or package for recycling and which do not.” [Do such packages with lists actually exist?] And the law “would still leave consumers in dark about whether a package or product marked as recyclable is genuinely recyclable in the consumers’ area—i.e., whether the consumer is in the portion of the state (which can be up to 40%) which does not accept the material for recycling.” Ultimately, the consumer understanding claims were too speculative to support the law.

It followed that narrow tailoring was also not present. The law failed to leave “breathing room for manufacturers to provide qualified information about their products and packaging,” such as “[n]ot recyclable in most areas; check locally” or a QR code on the packaging with “details regarding the product’s recyclability.” This meant that the provisions of the law that survived vagueness did not survive Central Hudson.

look, there's a lawsuit: bad claim against comedian leads to anti-SLAPP award

2026-08-31T15:01:30.405-04:00

Morake v. Mwanyenyeka, No. 2:26-cv-02795-JLS-AS, 2026 WL 2548629 (C.D. Cal. Aug. 28, 2026)

Noted because, well, it’s an unusually bad claim. Morake is the creator and original performer of “Nants’ingonyama bagithi Baba,” the opening chant from Disney’s The Lion King. Mwanyenyeka is a “comedian and content creator” who appeared on a podcast, where he asserted that “Nants’ingonyama bagithi Baba” means “Look, there’s a lion. Oh my god” in the Zulu language. This went viral, and he repeated the joke at various comedy clubs. Morake alleged that this was false and that the true translation of “Nants’ingonyama bagithi Baba” is “All hail the king, we all bow in the presence of the king.”

Morake sued for violation of the Lanham Act, defamation, trade libel, and tortious interference. Mwanyenyeka filed a motion to strike under California’s anti-SLAPP law, and then Morake dropped all the state claims in an amended complaint.

The amended complaint now argued false advertising and false affiliation focused on Mwanyenyeka’s “online storefront marketing an ‘It’s a Lion’ line of apparel and goods derived from Plaintiff’s composition.” (Sighs in Dastar.)

Because this sequence showed that Mwanyenyeka was the prevailing party on the state claims, the court awarded $39,560 in fees.

5th Circuit puts its own spin on the server test

2026-08-28T15:21:49.359-04:00

Emmerich Newspapers, Inc. v. Particle Media, Inc., No. 25-60550 (5th Cir. Aug. 27, 2026)

This is being reported as creating a split with the 9th Circuit; I don’t think that’s right in practice. As far as I can tell, the 9th Circuit says that public display is made by the server that transmits the display, while the 5th Circuit says that public display is made by the server that transmits the display. Plenty of good cites to the copyright scholars’ amicus brief that I filed and to the Restatement of Copyright.

The court of appeals also suggested that URLs could constitute CMI, though it recognized that this would often create not just expensive fact-finding but also a separate issue of intentional removal--intentionally removing URLs as a general practice, even if some might be CMI, doesn't seem like it should trigger 1202, similar to the cases holding that stripping metadata from photos isn't actionable even though metadata might sometimes have CMI in it.

Overall, a good result (and I would have said that even without the repeated citations, promise!).

weak infringement case + bad litigation conduct = fee shift for anticompetitive suit over descriptive term

2026-08-27T16:26:29.220-04:00

BBK Tobacco & Foods LLP v. Central Coast Agriculture Inc., No. CV-19-05216-PHX-MTL, 2026 WL 2445019 (D. Ariz. Aug. 20, 2026)

Previously. Although BBK forced Central Coast to an (expensive) trial on its very weak infringement claims over the use of “raw” on smoking-related products, it is now subject to a fee award. “[W]hen a company pushes flimsy legal arguments with scorched-earth, win-at-any-expense litigation to bully its competitors into submission,” it harms consumers by raising prices. “In about two hours, after a two-week trial, the jury returned a verdict fully in favor of Central Coast,” finding no infringement based on the shared word “raw.” “The jury’s verdict makes perfect sense, since the trademarks have nothing else in common other than this three-letter combination. Tellingly, BBK could not introduce a single instance of actual customer confusion.”

But it took over seven years, plus a trip to the Ninth Circuit and the aforementioned jury trial, to get there.

Central Coast (CCA) was the prevailing party because it is now free to use its RAW GARDEN mark without the threat of an infringement suit by BBK. Even though BBK succeeded in voiding CCA’s pending intent-to-use applications, both parties were free to use the marks just as before, and defeating CCA’s cancellation counterclaims left BBK’s registrations just as they already stood. By contrast, “[h]ad BBK prevailed on the infringement claims, CCA would have faced damages and an injunction against its Raw Garden brand, and the defense verdict removed that exposure.” BBK’s successful defense of CCA’s counterclaims didn’t make it a prevailing party, because CCA succeeded on the infringement claims that drove the litigation.

Octane Fitness provides that “[a]n ‘exceptional’ case is simply one that stands out from others with respect to the substantive strength of a party’s litigating position (considering both the governing law and the facts of the case) or the unreasonable manner in which the case was litigated.”

BBK argued that the court of appeals, in reversing the initial grant of summary judgment already found the Sleekcraft factors “evenly matched or tip[ped] only slightly in favor of either party” and remanded for trial, foreclosing any finding that its position was weak. But that’s not what the court of appeals did—it said that likely confusion “is a factual question ordinarily reserved for the trier of fact.” (See Sepehr Shahshahani’s useful Fact-Law Confusion for why this is a silly thing to say.) The Ninth Circuit’s “evenly matched” observation “established only that the question could not be resolved on summary judgment … and, in any event, it described a summary judgment record rather than the proof ultimately presented at trial.” Nor was the panel even unanimous on that point.

“And this Court, having presided over a two-week trial and observed the evidence develop live before the jury, is well positioned to assess the strength of the merits of BBK’s arguments.” The trial bore out all the weaknesses in the central factors. For example, there was no evidence of actual confusion, even though the RAW and Raw Garden brands had been sold in some of the same California dispensaries together for more than five years. “The absence of actual confusion over so lengthy a period of concurrent use in the same market is itself powerful evidence that confusion is unlikely.”

Nor was this unclear to BBK until trial. At summary judgment, the Court found the record “contain[ed] no evidence of actual instances of confusion,” and that the relevant deposition testimony of BBK’s founder was “uncorroborated and self-serving” and insufficient even to create a triable issue, particularly because BBK’s own Rule 30(b)(6) witness was unaware of any confusion. “That BBK could marshal no more than this, after years of head-to-head sales in the same dispensaries, strongly indicates confusion was not occurring.”

BBK’s affirmative confusion evidence came from a survey that produced net confusion rates of roughly 11.9 percent. Rates in that range are “not so high as to constitute persuasive evidence in favor of confusion,” and “survey confusion numbers that go below 20% need to be carefully viewed against the background of other evidence weighing for and against a conclusion of likely confusion.” Weighed against the marks’ visual dissimilarity and the lack of other evidence of confusion, the survey did not show that confusion was “probable, not simply a possibility.”

Nor was BBK’s position on mark similarity justified. “Marks must be compared as a whole and as they appear in the marketplace, rather than by taking a deconstructionist view of the different components of the marks, and across appearance, sound, and meaning.” Apart from the shared descriptive term “raw,” the Court found the marks “visually...not similar” and possessed of “significantly different commercial impressions,” such that “consumers could readily distinguish between the parties’ products as they appear in the marketplace”—a dissimilarity that “weigh[ed] strongly against a likelihood of confusion.”

But this was not the sole reason to find exceptionality, merely a factor weighing in favor of it. [Comment: if we’re almost never going to allow TM cases to be rejected at summary judgment, then a fee shift for pressing ahead with an expensive trial despite clear weakness in the case is one of the few remaining constraints on abusive litigation, and should be available even in the absence of litigation misconduct. But that’s a worse solution than just actually applying the summary judgment standard.] “The manner in which BBK litigated this case supplies the additional showing that, combined with the weakness of its proof, makes this case exceptional.”

Most significantly, BBK relied on a photograph of a purported Raw Garden product bearing RAW-branded cones, and the Court sanctioned BBK’s counsel under Rule 11 for advancing allegations about that photograph “that counsel must have known were false.” There was no evidence that BBK itself fabricated the photograph, but counsel had been repeatedly warned was not genuine, “and a party’s counsel’s conduct is properly considered in the exceptional-case analysis. Knowingly pressing fabricated evidence to defeat summary judgment is the sort of conduct that makes a case stand out from others.”

That wasn’t the end of it.

BBK introduced, both before and during trial, late-disclosed evidence of supposed actual confusion that it had never produced in discovery, including an affidavit dated years after the close of fact discovery and testimony that roughly fifty people had approached [its principal] expressing confusion. That testimony was at odds with BBK’s own verified discovery responses, in which it had repeatedly denied awareness of any actual confusion. A litigant’s reliance on confusion evidence it withheld through discovery and sprang at trial supports an exceptional-case finding.

This litigation conduct reinforced the court’s conclusion that BBK “pursued scorched-earth tactics aimed at securing exclusive rights to the ordinary word ‘raw.’” The court noted “BBK’s broader litigation practice of strong-arming other companies out of using the term.” It repeatedly threatened and sued businesses that incorporated “raw” into their marks. “Trademark law does not exist to let a single company annex a common, descriptive word and wield costly infringement suits to keep competitors from using it.” Octane Fitness allows the court to consider anticompetitive motive. “The trial record indicates that part of BBK’s aim was to position itself to claim the ‘raw’ name for its own use as the cannabis market moves toward national legalization.”

CCA got over $2.5 million in fees, less than half of what it requested. So BBK was still able to impose a lot of costs on it.

use of (R) on goods for which mark is not registered might be literally false

2026-08-27T15:00:17.429-04:00

Southern Marsh Collection, LLC v. Dixie Decoys, LLC, 2026 WL 2431220, No. 24-00905-BAJ-EWD (M.D. La. Aug. 19, 2026)

This opinion deals only with defendant’s attempt to get claims against its allegedly false use of the ® symbol dismissed; it is otherwise a trademark and copyright infringement case. Southern Marsh sells a variety of outdoor apparel and accessories using a duck-style logo; it has several registrations for its trademarks, including the logo and the slogan “PRESERVE THE TRADITION.” Dixie Decoys allegedly uses a registered mark for its outdoor apparel that is confusingly similar to Southern Marsh’s, as well as “Preserve the Sporting Tradition” and “Preserve Your Sporting Tradition,” which allegedly infringes.

Southern Marsh duck

Decoy duck

These are really weak, anticompetitive claims, but the usual deference given to trademark claims here extends even to the false advertising claim based on misuse of the ® symbol, which is that Dixie Decoys does have a registration for the logo, but only for “Waterfowl hunting decoys.” Nonetheless it uses the ® symbol more broadly.

The court found that general allegations of harm to Southern Marsh’s reputation and goodwill sufficed to plead both standing and sufficient harm to survive a motion to dismiss. That is, let’s say, unusual in false advertising cases. I tell my students to tell, and challenge, “harm stories,” but other than reciting the word “harm,” there is no harm story here. People might believe that Dixie Decoys has a trademark registration for its logo for apparel and … what? True underpants gnomes reasoning here.

The court also rejected Dixie Decoys’ argument that the use wasn’t literally false because there was a registration. “Federal trademark registration is not totally untethered from the goods or services identified in the registration, as Dixie Decoys contends…. [G]iven that federal trademark registration rights are goods-specific, this Court similarly finds that Southern Marsh has plausibly alleged that Dixie Decoys’ use of the ® symbol next to the challenged marks on goods outside of the registration could be a literally false statement of fact.” Thus, no evidence of deception was required, and anyway Southern Marsh alleged that consumers were deceived, which was enough at the pleading stage. [Materiality?]

Midjourney can't force Disney to disclose the prompts it used that didn't generate material in complaint

2026-08-27T13:25:09.351-04:00

Disney Enterprises, Inc. v. Midjourney, Inc., No. 2:25-cv-05275-JAK-AJR, 2026 WL 2055488 (C.D. Cal. Jun. 15, 2026)

This is what seems like a significant discovery dispute; I’m not an evidence scholar, but there’s interaction with the fair use analysis that copyright folks should attend to.

Plaintiffs sued Midjourney over its image and video generation “diffusion models,” arguing that they infringed both by copying their characters in training and by distributing copies of those characters in images and videos to Midjourney subscribers.

Midjourney sought to compel plaintiffs to produce: “(1) documents concerning their development, use of, and policies regarding generative artificial intelligence (‘AI’) tools for image and video creation, and (2) the complete set of Midjourney prompts and outputs that Plaintiffs (or their agents) used” for the operative complaint. The court granted the request in part for (1) but found (2) was privileged.

Plaintiffs objected to producing documents about third-party datasets they used in connection with any AI tool and similar documents. They agreed to produce nonprivileged responsive documents “sufficient to show instances in which [Plaintiffs] authorized its employees or contractors to use generative AI to generate images and/or video outputs intended for consumers, featuring the asserted works.” As for the prompts, they agreed to produce nonprivileged responsive documents “sufficient to identify the prompts used to create the image[s] generated by Midjourney shown in the complaint and put at issue in this action, and the side-by-side outputs contemporaneously generated in response to such prompts,” but not the prompts that they didn’t choose to include.

Midjourney argued that these discovery requests were relevant to both its defense of fair use, as well as its equitable defense of unclean hands.

Fair use: Midjourney argued that its requests bore on multiple elements of fair use, including transformativeness. But the court didn’t buy its argument that, “if Plaintiffs are developing and deploying diffusion models (employing the same technology, training techniques, and public data as Midjourney), that is a powerful concession that such models produce something fundamentally new and useful—relevant evidence of the transformative nature of that (and Midjourney’s) technology.” After all, Warhol says “the same copying may be fair when used for one purpose but not another.” [But this would be the same purpose, just a different user, no?] The SDNY has agreed that “the relevant inquiry under the first fair use factor concerns a defendant’s use of a plaintiff’s copyrighted material, not a downstream use of defendant’s allegedly infringing material by a copyright-holder plaintiff.” In re OpenAI, Inc., Copyright Infringement Litig., 800 F. Supp. 3d 602, 608 (S.D.N.Y. 2025). Likewise, New York Times Co. v. Microsoft Corp., 757 F. Supp. 3d 594 (S.D.N.Y. 2024), held that the fair-use factors “do not require a court to examine statements or comments a copyright holder may have made about a defendant’s general industry, whether the copyright holder has used tools in the defendant’s general industry, whether the copyright holder has admitted that other uses of its copyrights may or may not constitute fair use, or whether the copyright holder has entered into business relationships with other entities in the defendant’s industry.”

Public benefits (part of factor four after GvO): But GvO “made clear” that balancing the public benefits against the losses to copyright owners would not “always [be] relevant to the application of fair use,” and focused on the consequences of Google’s copying, not anything that the plaintiff (Oracle) did in its own business.

Nor was this evidence relevant to market harm. Relevant discovery would include the loss to plaintiffs and how the challenged use might “kill demand for the original,” as well as discovery directed to Midjourney concerning the public benefits from the copying.

What about industry custom and practice? Wall Data Inc. v. Los Angeles Cnty. Sheriff’s Dep’t, 447 F.3d 769, 778 (9th Cir. 2006), says that courts “should bear in mind that fair use is appropriate where a reasonable copyright owner would have consented to the use, i.e., where the custom or public policy at the time would have defined the use as reasonable.” But that’s dicta. [This is contrary to what one might have thought was happening two decades ago.] Sure, “industry custom and practice may be relevant to the analysis of fair use in a particular case,” but “courts consistently reject the argument that ‘everybody else is doing it’ as a defense to copyright infringement.” This is really about the (narrower) defense of unclean hands.

But the equitable defense of “unclean hands is recognized only rarely, when the plaintiff’s transgression is of serious proportions and relates directly to the subject mater of the infringement action.” Indeed, “the alleged wrongdoing of the plaintiff does not bar relief unless the defendant can show that he has personally been injured by the plaintiff’s conduct.”

Thus, plaintiffs’ development, use of, and policies regarding generative AI were not relevant to the defense of unclean hands because none of the discovery would establish inequitable conduct that is both directly related to plaintiffs’ claims and injured Midjourney. [Other than through preventing competition with this lawsuit.]

Still, the requested discovery was potentially relevant to establishing: (1) the potential market for or value of the copyrighted work; (2) industry custom and practice; and (3) the defense of unclean hands. But plaintiffs agreed to produce documents sufficient to show their business plans, roadmaps, research reports, other studies, and approvals of their actual or proposed development or training of generative AI intended for consumers, including their contractors’ authorized use of generative AI intended for consumers, as well as documents about some related matters. That was enough. Documents related to the actual or proposed development of generative AI not intended for consumers were not relevant, or not enough to be proportional. However, the court granted the motion to compel plaintiffs to also produce documents sufficient to show plaintiffs’ approval of the use of generative AI to generate images and/or video outputs intended for consumers, featuring the asserted works, which is relevant to the market-harm factor.

Requests for training-related documents had some relevance to establishing industry custom and practice, but had to be narrowed to focus on actual or proposed development of generative AI intended for consumers. “By contrast, Plaintiffs’ training of generative AI tools not intended for consumers would not provide evidence of industry customs and practices that would be relevant to Defendant’s defense of fair use,” or, if relevant, not enough to justify the burden of production. Thus, plaintiffs needed to produce non-privileged responsive documents sufficient to show their “development, training, or contemplated development or training of any generative AI to generate images and/or video outputs intended for consumers, featuring the asserted works, including training datasets, datasources, or model weights.”

Midjourney prompts: Plaintiffs agreed to produce documents sufficient to identify the prompts used to create the images generated by Midjourney shown in the operative complaints, as well as the side-by-side outputs contemporaneously generated in response to such prompts.

Midjourney argued that “withholding prompts and outputs related to images not used in the operative complaints would allow Plaintiffs to artificially inflate the universe of allegedly infringing outputs, distort the damages calculus, or misrepresent their own engineered images as examples of third-party infringement.” But “the volume of prompts and outputs related to images generated for potential use in the operative complaints, but not actually used, is infinitesimal compared to the true scope of this case which involves tens of millions of subscriber prompts associated with Plaintiffs’ copyrighted works.” Given the current statistical sampling protocol that the parties are finalizing, withholding the prompts wouldn’t distort a damages award.

The non-used prompts and outputs were protected work product. The work-product doctrine protects “from discovery documents and tangible things prepared by a party or his representative in anticipation of litigation.” This was “classic” pre-suit investigation and efforts to prepare the operative complaints. Such unused prompts and outputs were “core” work product because they necessarily reveal counsel’s “mental impressions, conclusions, opinions, or legal theories developed in anticipation of litigation.” This kind of opinion work product “is virtually undiscoverable.”

Midjourney argued that plaintiffs waived protection by submitting prompts to Midjourney in the first place because Midjourney’s Terms of Service make prompts and outputs public by default and grant Midjourney a license to reproduce, prepare derivative works of, publicly display, publicly perform, sublicense, and distribute their inputs. But “waiver of attorney work-product protection requires more than the disclosure of confidential information, it requires an act inconsistent with the adversary system.” Pre-suit investigation was not inconsistent with the adversary system. Nothing stops Midjourney from conducting its own investigation of prompts submitted by plaintiffs and their counsel, though.

“Accepting Defendant’s view of selective disclosure would virtually eliminate the protection for attorney work product in the context of any court filing because every court filing inherently reflects strategic choices of counsel in what facts to include and even what legal arguments to make.”

Comment: If you believe, as many people seem to, that “how hard was it to get the model to generate an allegedly infringing output?” is a relevant question, then the rulings here make it harder to conduct that inquiry. I’m no evidence expert, but the ruling seems to make probabilistic/guardrails inquiries off-limits to fair use, which seems directionally wrong to me. (Burden-shifting might help—one could say that if the defendant puts in evidence that it tried to make it hard to generate infringing outputs, then the plaintiff has to do more to show that those guardrails didn’t work, which wouldn’t necessarily require disclosure of attorney work product. This is my optimistic reading of the reference to the millions of prompts at issue in this case.)

Private label brands show lack of exclusive use for Pedialyte's trade dress claim, but bad social media use saves TM claim

2026-08-27T12:50:00.792-04:00

Abbott Laboratories v. Revitalyte LLC, 2026 WL 2374024, No. 23-1449 (DWF/DTS) (D. Minn. Apr. 30, 2026)

The court here allows part of Abbott’s infringement claim to proceed, including against “compare to Pedialyte,” which I think is wrong, though Revitalyte did other sketchy stuff that is less clearly comparative. It rejects Abbott’s trade dress claim, in part because so many house brands have the same or similar trade dress.

The parties compete in the market for oral electrolyte solution (OES), drinks intended to relieve symptoms of dehydration. Pedialyte now expands beyond the pediatric market and is now also sold to adults for illness-and exercise-related dehydration; Abbott briefly advertised it as a remedy for alcohol-related dehydration/hangover. Abbott dominates the OES market with over half of the total sales in the category.

Three kinds of Pedialyte: regular, advanced and sport

It defined its claimed unregistered trade dress as:

the clear rectangular plastic bottle; the bottle’s rounded corners; the placement and appearance of the two ridges or “ribs” around the bottle’s circumference; the placement and appearance of the bottle’s gently sloping shoulders; the bottle volume of roughly one liter; the wrap-around label encircling the middle 50-60 percent of the bottle with the name of the product prominently displayed horizontally; the bright colors of the various Pedialyte flavors as visible above and below the label; the color palette, size, and alignment of the wrap-around label; and the size, color palette, and appearance of the shrink-wrapped screw-on.

Abbott claimed use since 1986, despite slight change in the bottle specifications.

“[C]onsumer research showed that parents and doctors wanted something non-breakable with the ability to see the fluid level. Abbott chose a square bottle shape for the plastic container to mimic packaging from sterile irrigation bottles; the medicinal feel communicated to parents that the product was safe and trusted for medical purposes. Abbott also added the shrink-wrap cap to show the consumer if the product had been tampered with.” [There's more functionality evidence but it is irrelevant.]

Revitalyte targets young adults seeking relief from alcohol-related dehydration. “The link with alcohol abuse and other off-color themes is explicit in the company’s marketing. Its social media pages are rife with references to excessive drinking, hangovers, and partying.”

In the original Revitalyte bottle, the shrink-wrapped cap included the text “Compare to Pedialyte.” The back of the wrap-around label included a disclaimer that Revitalyte was not associated with Pedialyte. Revitalyte also partnered with Barstool Sports on Revitalyte Black Label. Revitalyte initially used PBM Nutritionals as its manufacturer; PBM designed and supplied the bottle itself (it didn’t offer different shapes), the placement of the label, the shrink-wrapped cap, and the “Compare to Pedialyte” language. PBM had a trademark registration for its “block shaped bottle.” “Revitalyte could have further customized by removing the ‘Compare to Pedialyte’ on the shrink-wrapped cap, but chose not to because it would have been more expensive.”

private label with "compare to Pedialyte" on cap

Since 2024, Revitalyte has sold only 20-ounce products and no longer uses PBM as a manufacturer.

current bottle

Revitalyte’s admitted goal was to be an adult version of Pedialyte— “the same product but purchased in the liquor store instead of having to go to the baby aisle.” It used a square bottle to communicate that the product was part of the OES category by matching the category leader.

also three kinds of Revitalyte

Also:

Revitalyte’s marketing strategy has leaned into the similarity with Pedialyte®. Revitalyte’s website said it was the “same electrolyte formula found in the baby aisle.” Revitalyte’s website also included screenshots of social media posts discussing Pedialyte® by name. (Further, Revitalyte advertised its products using a comparison to Pedialyte®.)

This resulted in consumer confusion, e.g., a social media post calling Revitalyte “Revitalyte by Pediatlyte.” Other posts called Revitalyte Black Label Barstool’s version of Pedialyte (it’s not obvious to me that reflects confusion, but the court thought so). Revitalyte didn’t shut down this confusion. Instead, it shared those posts on its social media pages. This proved to be a bad plan.

retweet of "Revitalyte is the adult version of Pedialyte"

Retweet of "barstool sports brand pedialyte"

similar

quote post of "like Pedialyte" (which should be fine)

Pedialyte tagged as producer of Revitalyte

Revitalyte used social media posts mentioning Pedialyte

Trade dress infringement: Abbott failed to show that its trade dress was protectable. It had no direct evidence of secondary meaning. “Given that Abbott did commission an expert on a related issue, that omission is telling.” Instead, it relied on its advertising and sales; proof of Revitalyte’s intent to copy; and instances of actual confusion by consumers.

If “advertising promote[s] the product’s functions and appearance, not its source,” then advertising expenditures are not probative. The ads in the record focused on function, e.g., the resealable cap, ability to pour and measure, and visibility of the liquid touted as “conveniences” to parents.

Similarly, sales are probative of secondary meaning only if they can be traced to the use of the claimed trade dress. Abbott’s “sales are impressive, but there is no indication that the trade dress specifically was responsible.”

Intentional copying can indicate secondary meaning, but “when a defendant clearly labels its products with its own trademark, the inference of secondary meaning is rebutted.” The Revitalyte trademark was used conspicuously on the bottle and Revitalyte used an express disclaimer. The evidence suggested an intent to compete, which wasn’t sufficient to establish secondary meaning.

Consumer confusion can also be evidence of secondary meaning. But here, its significance was “refuted by the ample evidence of third-party products with similar packaging because it shows a lack of exclusive use. When there are similar components used among various products, it is more difficult for a consumer to attribute that feature to any one source.” The PTO told PBM , that the applied-for mark was not inherently distinctive because “it is a common practice in the industry to market electrolyte replacement solutions ... [in] bottles with narrow necks that slope down to straight sides.”

Even more telling, the Pedialyte® bottle design was based off medical irrigation bottles. Any claim that the bottle’s features are indicative of only one source is belied by the fact that the bottle design was initially copied from a different type of product. The ubiquity of the square bottle shape in the OES market and in medical packaging suggests that it cannot be attributed to a single source in the minds of consumers.

Abbott argued that the third-party products were “private label brands,” less likely to confuse consumers. Its evidence here is sealed (grrr) but its consumer expert opined that, because Revitalyte is “branded,” that’s more likely to be confusing. “But regardless of whether consumers think Revitalyte® is a private label or national brand, the market is still saturated” (citing Versa Prods. Co. v. Bifold Co. (Mfg.) Ltd., 50 F.3d 189, 216 (3d Cir. 1995) (“The use of private labelling undermines a claim that a product’s appearance denotes its source, because consumers will be less likely to associate the multifariously labeled product with a single source.”)). Thus, Abbott couldn’t show the exclusive use of the trade dress required to establish secondary meaning.

After all that, “Compare to Pedialyte”—the most standard comparative message there is—kept Revitalyte in trouble, along with its hinky social media. The court noted that defendant didn’t provide much in the way of argument on trademark infringement, making it hesitant to grant summary judgment.

The various factors could support a finding either way: The products are similar (thus, “compare”). The different target audiences and different retail locations cut against likelihood of confusion. There was “ample evidence of Revitalyte’s intent to align with the Pedialyte® name, even purposely rhyming with Pedialyte®, which indicates an intent to ‘pass off’ Revitalyte® as part of Abbott.” But Revitalyte’s use of “compare to” and its own branding indicated an intent to differentiate (ciating Conopco, Inc. v. May Dep’t Stores Co., 46 F.3d 1556, 1571 (Fed. Cir. 1994) (finding that a “compare” statement “draws a clear distinction” between products)). Thus, there was a material question of fact on likely confusion.

[Now, how do we segregate the confusion evidence based on name from that supposedly based on shape/trade dress? There’s going to be a causation problem. “Compare to” isn’t likely to cause confusion, but the online behavior much more plausibly is. But that wasn’t clearly based on the name itself, where the overlap in suffix “lyte” has a pretty descriptive meaning. If anything, the strongest claim is false association under 43(a) based on the online conduct, not even really trademark infringement as such.]

Trademark dilution: Revitalyte conceded the fame of Pedialyte. “The textbook example of trademark dilution by tarnishment is the association of a mark with an unsavory context. Revitalyte readily associates its brand with alcohol abuse and uses a crude advertising approach.” Thus, a fact finder could find tarnishment of Pedialyte, “a product centered on health and, often, children’s health specifically.” But Abbott did, at one point, advertise it as a cure for hangovers, so Abbott’s own attempts to identify with that market would justify a finding that associations with alcohol are not a tarnishment to the brand.

Revitalyte briefly argued that the use of the “compare to” statement mitigates any risk of reputational harm because consumers know they are separate products. True, comparative advertising is exempted from dilution claims.

But, making up something that isn’t in the dilution provision, “the comparative advertisement exception only applies if the user does not do anything to suggest sponsorship or endorsement.” [So apparently the jury can only find dilution by tarnishment if it also finds confusion? Cool with me, I suppose.] And here,

Revitalyte’s attempts to align with Pedialyte® go far beyond a mere “Compare to Pedialyte” statement on the bottle. There are multiple documented examples of Revitalyte reposting social media posts that describe Revitalyte® as owned by Pedialyte® and Revitalyte did not correct that factual error. In some of those posts, there is either no Revitalyte® bottle or no shrink-wrapped seal, so the comparative language is not present to clarify the lack of a relationship. Those advertisements suggest sponsorship by Pedialyte®, which distinguishes this case from those which allow comparative use.

I hate to borrow a bit from copyright law, but this might be better addressed by a use by use analysis. Under no circumstances should the (not misleading) statement “compare to Pedialyte” ever constitute dilution or be enjoined. But the other uses weren’t comparative advertising and weren’t eligible for that exception.

Abbott also moved to preclude Revitalyte’s rebuttal expert on the “private label” point above. “[R]ebuttal evidence may be used to challenge the evidence or theory of an opponent—and not to establish a case-in-chief.” Id. A rebuttal expert “may only respond to evidence offered by the defendant.”

Though we can’t see it, Abbott’s expert report analyzed whether Revitalyte is better described as a private label brand or a national brand by applying the “4Ps” framework: place, product, price, and promotion and concluded that Revitalyte “exhibits the hallmarks of a national brand.” The report further opined that, as a result of the positioning as a national brand, a meaningful segment of consumers is likely to perceive that Revitalyte is associated with Pedialyte. He didn’t conduct a survey.

The rebuttal report was about a confusion survey that purportedly showed de minimis confusion between Pedialyte and Revitalyte bottles. It didn’t address the issue of national brands versus private labels, nor the 4Ps framework. “Even if using a different approach, [the] rebuttal testimony must have engaged with the 4Ps framework or addressed the central question of national brand versus private label.” Thus this report was excluded.

Given that Abbott was seeking only disgorgement, Revitalyte wasn’t entitled to a jury. [Disgorgement would nicely solve the obvious causation problems, too.]

9th Circuit orders class decertified: common issues on materiality/damages insufficient without deception

2026-08-25T16:12:33.428-04:00

Rusoff v. Happy Group, Inc., --- F.4th ----, 2026 WL 2387098, No. 24-7706 (9th Cir. Aug. 17, 2026)

Court’s summary:

This is a deceptive advertising class action concerning “pasture raised” labels on egg cartons. After excluding the opinion of plaintiffs’ expert on egg industry standards, the district court found that plaintiffs’ inability to demonstrate consumer deception on a class-wide basis “precludes a finding of predominance” under Federal Rule of Civil Procedure 23(b)(3). The court nonetheless certified the classes based on assertedly common questions of materiality and damages. Because plaintiffs did not meet the requirements of Rule 23(b)(3), we reverse the grant of class certification.

USDA recognizes caged and cage free eggs; the latter has two subcategories, organic and free range. USDA considers “free range,” “pasture raised,” and certain similar terms to be synonymous. But there are a number of other standards from associations and retailers who operate voluntary certification programs, which egg producers pay to participate in. To these certifying organizations, “pasture raised” is the more stringent standard, so certified pasture-raised eggs tend to command a price premium in the market. But the certifiers’ standards differ, e.g., one requires at least 2 square feet of uncovered outdoor area per hen, while another requires about 22 square feet per hen available for potential use (though only about 5.5 square feet needs to be accessible to the hens at any one time if there’s rotation).

Happy Egg’s egg cartons advertise that its hens are “free range” and “pasture raised on over 8 acres.” Plaintiffs alleged that the more stringent “pasture raised” standards are the dominant industry standards, and that consumers paid a price premium for Happy Egg products based on the company’s implied compliance with these standards (even though Happy Egg did not identify either standard on its cartons).

Plaintiffs’ expert opined that “the prevailing consumer expectation is that an egg producer making a free-range or pasture-raised claim is adhering to the commonly accepted standards pertaining to such claims as set by the AHA or HFAC.” The lead plaintiffs testified that they didn’t know about the standards’ content. The court found that one expert didn’t have a methodology for examining different egg products in Seattle, rather than California or New York (where the class members resided).

There was also a consumer survey expert. The survey results found that using both the “pasture raised” and “free range” labels led consumers to conclude that the eggs were both pasture-raised and free-range, whereas with only a “free range” label, they concluded that the eggs were free-range, but not pasture-raised. The survey did not address whether a reasonable consumer understood “pasture raised” as aligned with either allegedly dominant standards. For materiality, survey respondents were 8.1 times more likely to state a preference for the eggs that included the “pasture raised on over 8 acres” representation.

Thus, plaintiffs’ theory of deception required both experts: the first to show that “pasture raised” had a commonly understood meaning tied to the dominant standards, while the survey would show that a reasonable consumer would understand Happy Egg’s “pasture raised on over 8 acres” claim to mean that its eggs were pasture-raised.

But the district court excluded the first expert, whose methods for assessing what a reasonable consumer would understand—such as photographing egg cartons in stores near his home for his own “personal purposes”—were unreliable, as they “[did] not pass the standards that he would expect of his own survey consultant.” Then, the survey lacked a key foundation piece, and couldn’t prove predominance.

But the district court still certified the class under Rule 23(b)(3) after finding that materiality and damages were common questions that predominated.

The district court correctly excluded the first expert’s opinions as unreliable because they didn’t come from “a rigorous evaluation of how a reasonable consumer understands the term ‘pasture raised.’” As a result, “on the foundational issue of deception, plaintiffs failed to make the required showing.” It wasn’t enough to show that certain industry standards are dominant without connecting that to consumer beliefs.

Plaintiffs responded that deception is governed by an objective “reasonable consumer” standard, which means that all claims by any plaintiff will necessarily rise and fall together. “But in order to reach the reasonable consumer analysis, a plaintiff must first show, on a classwide basis, what deceptive marketing or false advertising a reasonable consumer could have been misled by.” Thus, “[w]here the theory of deception is tied to an industry standard, evidence must be brought forward showing that there is a commonly understood industry standard, and that a reasonable consumer would associate a given representation with that standard.”

Then, the district court erred by not weighing the common issues against the individualized issues and determining whether the common issues are, on balance, important enough to justify class-wide treatment despite the existence of individualized issues. Deception is a central element of the claims. “[O]n this record, the lack of a classwide showing on deception cannot be overcome by supposedly common issues of materiality and damages that are unmoored from any classwide showing of actionable wrongdoing.”

court finds ROP claim preempted where model initially consented to being in ad

2026-08-25T15:53:32.711-04:00

Delacruz v. Roc Nation LLC, No. 2:25-cv-11864-AH-(SSCx), 2026 WL 2455107 (C.D. Cal. Jul. 28, 2026)

Should copyright preemption apply to a right of publicity claim where the original, consented-to use of the work was created for advertising? The court here answers yes, although I think I would say no under conflict preemption.

Delacruz is a professional model “whose likeness has been featured in advertisements throughout the world.” Roc photographed her for a fee in connection with an advertising and marketing campaign for Megan Thee Stallion’s Hot Girl Summer swimwear. She allegedly granted consent only for use in social media, but Roc used her likeness on physical, public billboards. She sued for California statutory and common law misappropriation of her right of publicity and false endorsement/false advertising under the Lanham Act. (A breach of contract claim was apparently dropped.)

The question in the 9th Circuit is whether the use of the likeness forms the basis of a publicity rights claim—if so, it’s not preempted. On the other hand, “merely interfering with the distribution, display, or performance of a copyrighted work” is preempted. While existing precedent “strongly implies that misuse of an individual’s likeness is the ‘basis’ of a publicity-right claim when the name or image is exploited in advertising or on merchandise,” the circuit has considered other factors. For example, where there’s not voice imitation, but rather licensing of an existing sound recording, “the entirety of the allegedly misappropriated vocal performance is contained within a copyrighted medium” and there is preemption. (This is downstream of §301 preemption just being a bad fit for the relevant considerations, as I have argued—the court here, like many before it, mixes and matches statutory and conflict preemption reasoning, not to its benefit.)

The court here also drew on Second Circuit precedent, which looked at whether a plaintiff’s name or likeness was “extracted in any way to appear independently from how it originally appeared” in the works at issue. Melendez v. Sirius XM Radio, Inc., 50 F.4th 294 (2d Cir. 2022). Fleet v. CBS, Inc., 50 Cal. App. 4th 1911 (1996), also found preemption where “the only alleged exploitation occurred through the distribution of the actor’s performance in a motion picture.”

Thus, it wasn’t enough to avoid preemption that the photos were (re)used in commercial advertising when they were created as commercial advertising. Under such circumstances, the plaintiff was objecting to the “ ‘unauthorized distribution and republication of a copyrighted work, not the exploitation of [her] likeness on an unrelated product or in advertising.’ In other words, the entirety of the misappropriated likeness is contained within a copyrighted or copyrightable medium.” She consented to the commercial use of the photographs; her claims arose from the further distribution or duplication of those photographs.

Nimmer says that a claim “deserve[s] to be preempted ... [involving] facts of a party trying to suppress the very copyrighted work to which she had earlier voluntarily contributed.” Therefore, “the conclusion cannot follow mechanically that all advertising is actionable.” Following Nimmer, plaintiff “collaborated in the creation of a copyrighted advertising product,” and “even if she ... can also adduce a contractual dispute” regarding the scope of placement of such photographs, her collaboration “precludes her from using the right of publicity to squelch exploitation of that copyrighted work for its intended purpose of appearing on” Hot Girl Summer swimwear advertisements.

True, Toney v. L’Oreal USA, Inc., 406 F.3d 905 (7th Cir. 2005), allowed a publicity rights claim to proceed when the defendant used the ad in which she appeared beyond the authorized time period, but the court thought that conflicted with Ninth Circuit precedent. “[T]he commercial use element does not qualitatively distinguish the right of publicity claim from a claim in copyright because the claim involves acts of distribution for commercial use. Thus, the claim does not involve additional elements beyond the reproduction of copyrighted works.”

Lanham Act: There was no literal falsity. Her theory was that the billboards were misleading because it suggested that she endorsed the Hot Girl Summer swimwear to billboard viewers when she sought to endorse the swimwear to social media viewers only.

However, by agreeing to participate in the photoshoot for the advertising campaign, Plaintiff effectively lent her endorsement of the Hot Girl Summer swimwear. Plaintiff does not allege that there was anything about that endorsement that communicated a limitation to certain viewers only, such that the photograph was misleading when it was posted on a billboard. Moreover, Plaintiff does not allege a theory of likelihood of confusion where the only plausible confusion alleged is who was to receive the message, not anything about the message itself.

compounding pharmacy must face drugmaker's Lanham Act claims based on false 503B compliance statements

2026-08-17T12:52:00.000-04:00

Pacira BioSciences, Inc. v. Nephron Sterile Compounding Center, LLC, No. 3:23-cv-05552-CMC, 2026 WL 2267750 (D.S.C. Aug. 6, 2026)

Pacira sells an FDA-approved pain management drug called EXPAREL. Nephron allegedly made various false and misleading statements about two of Nephron’s competing compounded drug products. Specifically, Nephron allegedly represented those products as compliant with Section 503B of the FDCA, and as safe, effective, and superior to EXPAREL. The court granted partial summary judgment to both sides on the resulting Lanham Act claim.

Section 503B defines an “outsourcing facility” as a facility that “is engaged in the compounding of sterile drugs”; “has elected to register as an outsourcing facility”; and “complies with all of the requirements of [Section 503B].” Outsourcing facilities may distribute compounded drugs without obtaining a patient-specific prescription. They are also exempt from the FDCA’s new-drug approval process and certain labeling and supply-chain requirements. But they have to satisfy 11 statutory “conditions.”

The condition central to this case restricts outsourcing facilities’ use of “bulk drug substances” in compounding. They can’t be used unless the government properly identifies a clinical need or a drug shortage. In 2016, the FDA said it needed time to evaluate nominations and wouldn’t act when a bulk drug substance appeared on a list of “Category 1” substances the FDA maintained on its website, which “may be eligible for inclusion on the [clinical need] list, were nominated with adequate supporting information for FDA to evaluate them, and [had] not been identified by FDA as presenting significant safety risks.”

Nephron compounded BKK, a compounded drug product consisting of bupivacaine, ketorolac, and ketamine; later, it switched to RKK, with ketorolac, ketamine, and ropivacaine. Nephron advertised and sold them as “503B products” and as lower-cost alternatives to Pacira’s EXPAREL. In August 2019, Pacira wrote to the FDA urging it to take action against Nephron over its “illegal marketing and promotion” of BKK. It sued in November 2023, alleging false advertising of both products in terms of 503B compliance, comparability to/substitutability for Exparel, and related safety/efficacy claims.

Laches barred claims based on BKK; Pacira knew about the alleged false advertising since at least August 2019 and failed to offer more than conclusory argument to rebut the presumption of prejudice arising from its more than four-year delay in filing suit (period borrowed from state law). Even without the presumption of prejudice, defendants noted that several key witnesses no longer work for Pacira; some witnesses often could not recall basic facts related to the litigation during their depositions, and two, “both of whom reside beyond the subpoena power of the court, indicated they do not intend to appear at trial.” Of the 28 Nephron employees identified in Pacira’s Rule 26(a) initial disclosures, 17 were now former employees, including 11 who “would have still been current employees had Pacira filed within three years of January 2020.” “The unavailability of witnesses, faded memories, and changes in personnel are all indicators of evidentiary prejudice.”

But RKK came later and was allegedly discovered later. Nephron identified no “facts otherwise indicating a lack of vigilance” on the part of Pacira.

The court first held that the RKK Section 503B claims weren’t statements of opinion. Though lay claims about law are generally opinion, sometimes a law is “so clear on its face that no good faith doubt concerning its interpretation [is] possible, even without an explicit statement from [a court or agency].” In that circumstance, the law’s meaning is “so clear as to be a fact for Lanham Act purposes,” and Section 503B is “clear on its face.” Determining whether an outsourcing facility’s claims of compliance with Section 503B’s “bulk drug substance” provision are true “requires no more than consulting two lists.”

Nephron argued that Section 503B permits an outsourcing facility to market and sell a drug (say, RKK) without FDA approval as long as the individual components of that drug appear on the drug shortage list. But that wasn’t true: the drug shortage exception allows outsourcing facilities to “compound using bulk drug substances” only if “the drug compounded from such bulk drug substance appears on the drug shortage list.” Section 503B also defines “compounding” as “the combining, admixing, mixing, diluting, pooling, reconstituting, or otherwise altering of a drug or bulk drug substance to create a drug.” That’s what making RKK is.

Nor did the FDCA preclude Pacira’s Lanham Act claim. The “logical building blocks” of Pom Wonderful apply with equal force to “drug marketing, medical device labeling, cosmetics branding, or any other kind of marking or representation which would fall under both the Lanham Act and the FDCA,” Thus, “courts adjudicating Lanham Act disputes outside of the food and beverage realm” have “almost uniformly” interpreted POM Wonderful “to cover products in other FDA-regulated industries,” including pharmaceuticals. The issue here was not an exception because it wouldn’t “require the expertise of the FDA to resolve,” would call on the court “to make an original determination on an issue committed to the FDA’s discretion,” or would “otherwise conflict with an affirmative policy judgment by the FDA.”

The court declined to consider alleged falsehoods not identified in the complaint: statements allegedly conveying that RKK was compounded “in compliance with Section 503B” or “in a 503B-compliant outsourcing facility,” along with the specific statements that RKK is “generic to or substitutable for EXPAREL,” provides “improved value” over EXPAREL, “reduces post-operative pain[,] complications, risk of readmission, length of stay, [and] patient morbidity and mortality,” “eliminates opioid related adverse drug effects,” and has “low reported incidents of nausea and vomiting.”

Were they false? Nephron’s product lists and pricing sheets were distributed to members of group purchasing organizations (GPOs), healthcare systems, and individual hospitals, enough to constitute commercial advertising/promotion. They listed RKK among Nephron’s “503B Products.” This was a false claim as matter of law: “By listing RKK under that heading, Nephron necessarily communicated to purchasers that RKK belonged to the class of products meeting the statute’s requirements; no other conclusion can be drawn from its designation as a ‘503B Product.’”

But statements that Nephron is “a leading manufacturer of 503B outsourcing products” weren’t literally false; appearing at the bottom of a Nephron “Opioid Free” product handout featuring BKK, RCK, and RKK “could be understood as conveying that Nephron manufactures ‘503B outsourcing products’ as part of its broader business, without necessarily implying that BKK, RCK, and RKK fall within that category.” Pacira’s survey didn’t test the “leading manufacturer” statement, so Nephron got summary judgment.

Nephron’s “503B outsourcing facility” logo appeared throughout Nephron’s materials, including the “Opioid Free” handout and the product label for RKK. Again, this was too ambiguous to be literally false. Here Pacira did have a survey, presenting respondents with a sample marketing email about BKK. Pacira’s expert concluded that a net 14.8% of respondents believed BKK was a Section 503B-compliant drug. “That percentage would ordinarily be sufficient to support a finding that an advertisement misled or tended to mislead consumers.”

The court denied Nephron’s motion to exclude. First, though the email shown to participants focused only on BKK, the deception rate calculated by Butler could be “extrapolated” to RKK; the difference went to weight rather than admissibility:

This is not a scenario where Pacira seeks to extend survey results to an entirely separate and untested statement (as with the “leading manufacturer” statement). Rather, the same “503B outsourcing facility” logo appeared on the product labels for both BKK and RKK, and it is not immediately clear consumers would perceive the logo differently depending on the product to which it was affixed. Under these circumstances, the weight to be given [the survey’s] findings, as applied to RKK, is for the jury to decide.

Other challenges also went to weight: Using closed-ended questions after open-ended questions has both critics and supporters and their limits could be the subject of cross-examination. The survey asked, “Which of the following, if any, are message(s) communicated by this email?” and offered the following response options:

1. BKK, an admixture of bulk drug substances from Nephron, is a 503B compliant drug

2. BKK, an admixture of bulk drug substances from Nephron, is opioid free

3. BKK, an admixture of bulk drug substances from Nephron, is packaged in syringe form

4. None of these

5. Don’t know / unsure

Respondents who selected the first option were asked a follow-up open-ended question to assess why they believed this.

Nephron argued that closed-ended questions should be avoided when testing consumer deception because they are “highly susceptible to demand effects and focalism.” But “there is nothing inherently wrong in using closed-ended questions to test consumer impressions.” They can be “suitable for assessing choices between well-identified options” and “may remind respondents of options that they would not otherwise consider or which simply do not come to mind as easily.” And open-ended questions have their own problems, such as decreasing reporting of actually-held views: “respondents answering open-ended questions may be less likely to report some information that they would reveal in response to a closed-ended question when that information seems self-evident or irrelevant” (quoting Shari Diamond). They also require subjective coding: “Because respondents are answering in their own words and may not provide precise answers, many answers are simply not clear enough to definitively evaluate or categorize reliably.” Also, the “Don’t know / unsure” answer choice is a recognized way “to screen out respondents who may not have an opinion on the issue under investigation.”

Nephron also argued that the survey expert made “excessive and biased” changes to the stimulus shown to the control group. The control group saw an email that (1) removed both instances of the “503B outsourcing facility” logo; (2) added a disclaimer stating, “Note: the admixture of bulk drug substances sold as BKK is not compounded in compliance with Section 503B”; (3) removed the statement “Nephron continues to strive to provide drugs that are critically short and meet all needs of the Country!”; and (4) modified the statement “This is something that will be huge in helping hospitals decrease opioid and Exparel use” by deleting the reference to EXPAREL. The disclaimer, Nephron argued, was “overly broad and inaccurate” because it “would likely lead participants to conclude that no part of BKK is 503B-compliant.”

It was logical to address only BKK in the disclaimer because that was the specific product being tested by the survey. “The court struggles to see why respondents needed to be informed of the compliance status of bupivacaine, ketorolac, and ketamine individually when they were being asked about the admixture BKK.” Anyway, this was for cross-examination.

Finally, Nephron argued that the survey was an improper “reading test” because the stimulus was visible while respondents answered questions. Again, experts disagree on this, so it was for cross-examination and competing expert testimony. Thus, there was a genuine issue of material fact on misleadingness for use of “503B outsourcing facility” logo on the “Opioid Free” product handout and RKK’s product label.

Statements that RKK (1) is “generic to or substitutable for EXPAREL” and (2) provides “improved value” over EXPAREL: Pacira didn’t show any use of the exact phrase. The closest it got was one email stating “Nephron produces BKK, RKK, & RCK as generic, clinical need medications as requested by physicians across the country.” That didn’t mention EXPAREL at all. Summary judgment granted on (1).

The “improved value” statement was in the “Opioid Free” product handout. But it didn’t make an express or implicit comparison to EXPAREL, and it was puffery.

RKK safety and efficacy: these statements claimed that RKK (1) “reduces post-operative pain[,] complications, risk of readmission, length of stay, [and] patient morbidity and mortality”; (2) “eliminates opioid related adverse drug effects”; and (3) has “low reported incidents of nausea and vomiting.” These weren’t establishment claims [side note that courts used to be much more open to the argument that scientific/health claims are establishment claims by necessary implication, which seems right to me], and Pacira showed only that they weren’t substantiated.

Of the remaining statements, there was no genuine dispute that “503B Product” was material, given that GPO customers “required Nephron to warrant that the compounded drugs it sold complied with Section 503B.” “Parties do not typically bargain for guarantees on matters they consider unimportant. That Nephron’s contracts with GPOs included an express warranty of Section 503B compliance is compelling evidence that such compliance mattered to purchasers of RKK.”

But the materiality of the “503B outsourcing facility” logo was still in dispute.

There was also a factual issue of injury based on evidence that certain customers who had previously purchased EXPAREL (1) began buying RKK when it came on the market, (2) simultaneously reduced their purchases of EXPAREL, and (3) were members of GPOs that had received Nephron pricing sheets listing RKK as a “503B Product.” So these issues, and damages and/or disgorgement, remained for trial.

anti-Chinese memory chips blog & report weren't commercial speech despite alleged competitor funding

2026-08-17T12:39:00.000-04:00

Yangtze Memory Technologies, Inc. v. Micron Technology, Inc., 2026 WL 2350276, No. 1:25-cv-01795 (CJN) (D.D.C. Aug. 13, 2026)

On the one hand, there’s a risk of suppressing valuable noncommercial speech if we apply the Lanham Act too broadly; on the other, there’s a risk of allowing false advertisers to launder claims through supposedly noncommercial speakers if we interpret it too narrowly. Here, the court finds the political valence of anti-China speech relevant to determining that the alleged falsity was not made in commercial speech.

YMTC alleged that defendants ran an astroturfing campaign that discouraged customers from purchasing memory chips from YMTC due to its connections to the Chinese government. Defendant Micron competes against YMTC in the market for memory chips. It allegedly worked with defendant DCI, a public affairs firm, “to erect a sophisticated ... ‘astroturfing’ campaign ... to damage YMTC’s reputation and business for their own profit.” It allegedly funded a website called China Tech Threat that “purport[ed] to be focused on policy” but was actually a front “to disseminate favorable messages about Micron’s products and disparaging messages about YMTC’s competing products.”

For example, CTT published a blog post, “As YMTC Booms, China Aims to Dominate Flash Memory Industry,” asserting that YMTC was associated with “criminal activity, including a Social Security spoofing scam, identity theft and cyber extortion.” A June 2022 report, “Silicon Sellout: How Apple’s Partnership with Chinese Military Chip Maker YMTC Threatens American National Security,” implored “Apple to voluntarily end its partnership with YMTC” and “source its chips from existing suppliers like Micron.” [Yeah, if the funding facts are as stated, that seems like commercial speech to me.]

Apple allegedly suspended its plans to purchase chips from YMTC in October 2022, resulting in “hundreds of millions of dollars in lost revenue.” The astroturfing campaign also allegedly “inflicted lasting damage on YMTC’s reputation and commercial standing across the technology sector.”

The court found Article III standing because YMTC pled “a plausible chain of events that links DCI’s actions to YMTC’s injuries.” DCI argued that other sources gave the same warnings, “[b]ut the existence of, perhaps, an equally important player in the story does not erase [DCI]’s role.”

However, the blog post and report were not actionable under the Lanham Act, despite including apparently factual claims such as “YMTC chips equipped with spyware and installed on Apple devices could funnel collected data back to Beijing” and “Electronics with embedded chips are enabled with a ‘kill switch’ .... Such features, under Chinese military production, could be enabled ... to shut down remotely by an unauthorized Chinese government actor.”

The court primarily reasoned that the 2021 blog post and 2022 report do not constitute “expression related solely to the economic interests of the speaker and its audience,” which strikes me as a way to insulate all factual claims from scrutiny given that we’re at a point in which anything can be politicized. But:

The blog post warned about the risk of China overtaking the United States in the flash memory industry and accordingly encouraged the Trump administration “to implement controls to stop the flow of [semiconductor manufacturing equipment] to China.” Given this clear focus on national security concerns, the post was not primarily—much less solely—about economic interests. As for the report, although it at least arguably contained some references to economic competitors in the chip industry, the vast majority of it either outlined the foreign policy risks of the deal between YMTC and Apple or proposed potential solutions to mitigate those risks. The report mentioned that the deal may have economic implications, but it was far from solely focused on that aspect.

The court also thought that the post and report weren’t “speech proposing a commercial transaction,” and that “this non-advertising medium strongly counsels against YMTC’s position.” (Just because astroturfing isn’t identified as a conventional ad shouldn’t make it ok!) “[E]ven if Micron, through DCI and China Tech Threat, would potentially benefit financially from seeing its competitor’s reputation suffer, that general economic motivation cannot alone transform the specific means at issue here—a blog post [and report] flagging national security concerns—into commercial speech.”

What about references to specific products, also part of the commercial speech inquiry? Well, discussing the potential risks of “YMTC chips” “generally” aren’t enough to constitute a reference to a specific product. That conclusion seems quite bizarre. An entity that sold flavored condoms, different sizes of condoms, lubricated and unlubricated condoms, and then touted condoms generally is making a specific product reference (Young of Bolger v. Young made Trojans, and also wanted to send flyers promoting condoms generally as well as Trojans specifically). And targeting a specific producer seems certainly within the Lanham Act’s concerns (see also “commercial activities” in 43(a)(1)(B)).

Ultimately, the court concluded, the publications are “political speech expressing a point of view, not commercial speech attempting to promote a good or service.” They called for government—not consumer—action. “YMTC’s attempt to focus on only four statements out of a 20-page report and one sentence out of a two-page blog post cannot overcome the overwhelmingly political nature of the publications.” This also distinguished Ariix, LLC v. NutriSearch Corp., 985 F.3d 1107 (9th Cir. 2021), which concerned a review guide “that compares and reviews nutritional supplements sold in the direct marketing industry”— “a much more commercial publication.” [Again, this distinction seems wrong to me. The issue in Ariix wasn’t that publications about nutritional supplements are inherently more likely to be commercial speech—plenty of such speech is noncommercial. It was the secret control by a funder who was spoken of well in the guides. And there was no showing in Ariix that the disparaging matter was a significant part of the guides, which covered lots of different supplements.]

heavy weather for heavy metals in infant food

2026-08-17T12:18:00.000-04:00

Choudhry v. Mead Johnson & Co., 2026 WL 2349932, No. 25-cv-09480 (ER) (S.D.N.Y. Aug. 13, 2026)

Plaintiffs alleged that various Enfamil infant formulas contained arsenic, cadmium, and lead, heavy metals that present significant health risks, particularly to young children, and “can cause serious and often irreversible damage to brain development,” including from “low levels of exposure.” They sued for false advertising under NY law.

They allegedly relied on the following claims on the packaging: “ ‘Brain Building,’ ‘#1 Recommended Brand by Pediatricians,’ ‘The Only Hypoallergic [sic] Formula With LGG® Probiotic,’ ‘No Artificial Growth Hormones,’ ‘LGG® probiotic to help support digestive health’ and ‘does not use table sugar,’ ” along with “expert recommended,” and some others. They alleged that reasonable consumers would not think these products contained heavy metals.

A consumer survey conducted by their counsel found that 77.8% of survey participants answered “No” when asked, “After seeing the label would you expect arsenic, cadmium, lead, and/or mercury in the infant formula?” The survey followed up:, “how important, if at all, would it be to your purchasing decision if the infant formula you purchased contained, or risked containing, even a small amount of arsenic, cadmium, lead, and/or mercury,” and 71.0% of participants answered “Very important,” 25.4% “Important,” and 3.6% “Not at all important.” Mead Johnson received judicial notice for the fact that, “[i]n April 2026, the FDA released a report finding low levels of Heavy Metals in many infant formulas, cautioned that this was not automatically reason for alarm, and that additional guidance is forthcoming, but did not provide a timeline for that guidance.”

The court declined to apply the primary jurisdiction doctrine. White v. Beech-Nut Nutrition Co., 2024 WL 194699 (2d Cir. Jan. 18, 2024) vacated the district court’s dismissal of a similar case based on the primary jurisdiction doctrine; detailed consideration wasn’t required because “the FDA had no expected timeline to provide actionable guidance on the safe levels of Heavy Metals in infant formulas, which outweighed ‘any advantages of deferring to the FDA under the primary jurisdiction doctrine.’” That was still true.

Also, courts are well-suited to determine if a product’s packaging was misleading or deceptive. This case didn’t require the court to determine what levels of heavy metals should be permissible, so there is not “a substantial danger of inconsistent rulings.”

Standing for unpurchased products: although the ingredients weren’t identical, the same alleged misrepresentation was on all of them, which was enough at this stage.

GBL §§ 349 and 350: Not subject to 9(b) pleading requirements. Mead Johnson questioned plaintiffs’ reliance, but they alleged that they “read and relied upon the packaging of the Infant Formulas when making their purchasing decisions,” which sufficed.

Material misleadingness to “a significant portion of the general consuming public or of targeted customers, acting reasonably in the circumstances”: Courts will not permit such claims “where the plaintiffs’ alleged inference appeared fundamentally incompatible with basic common sense.” Plaintiffs didn’t allege that the formulas advertised that they didn’t have heavy metals, “but that the packaging misleadingly represented the products as healthy, safe, and nutritious when they contained or risked containing Heavy Metals,” with claims like “Brain Building,” “expert recommended,” and “#1 Recommended Brand by Pediatricians.” The court agreed that the survey bolstered this inference.

Interesting comment:

Plaintiffs’ pleading satisfies this low burden because it demonstrates that the majority of consumers would assume the product did not contain Heavy Metals based on its label. This does not definitively establish that a reasonable consumer would be misled by the packaging. However, at this stage, despite certainly requiring an inferential leap, Plaintiffs sufficiently allege that this supposed deception is not “patently implausible” such that the Court can determine as a matter of law that reasonable consumers could not be misled by the packaging. (emphasis added)

Is the court saying that a majority of consumers could still be unreasonable? Empirical v. normative claims about reasonable consumers are scattered throughout cases, with courts rarely articulating the relationship between “reasonable” and “common.”

Anyway, implicit misrepresentation was plausible. What about an omission theory? Mead Johnson argued that plaintiffs failed to allege that knowledge about heavy metals was solely in its possession and that consumers could not obtain the information, and also that heavy metals in food is widely known.

At the motion to dismiss stage, “a plaintiff bringing an omission-based claim for § 349 liability must show that ‘the business alone possesses material information that is relevant to the consumer and fail[ed] to provide this information,’ or that plaintiffs could not ‘reasonably have obtained the relevant information they now claim the [defendant] failed to provide.’ ” This was sufficiently alleged. Plaintiffs alleged Mead Johnson’s superior knowledge; that consumers reasonably expected Mead Johnson to test for heavy metals and disclose that information to the public; that Mead Johnson deceptively hid that it failed to monitor for the presence of heavy metals in its products; and that consumers could not detect their presence without conducting scientific tests.

Materiality to a reasonable consumer: not a separate element, but it would be reasonable to assume that heavy metals’ presence would be material because of their health risks.

For common law fraudulent misrepresentation, Mead Johnson argued that its efforts as part of a trade organization to lobby against a California bill that would require disclosure of heavy metals content was insufficient to plead scienter because it is “legitimate First Amendment activity,” not “conscious misbehavior.” That alone wasn’t sufficient to establish the required “strong circumstantial evidence” of scienter, but it could bolster the claims.

However, unjust enrichment was dismissed as duplicative.

a lot of balls: golf ball manufacturer states claim for allegedly false UV light comparison

2026-08-14T12:48:00.000-04:00

TaylorMade Golf Co. v. TopGolf Callaway Brands Corp., 2026 WL 2244259, No. 3:26-cv-250-GPC-BJW (S.D. Cal. Aug. 4, 2026)

TaylorMade sued Callaway, a competitor in the golf ball market, for federal and state false advertising/unfair competition. TaylorMade alleged substantial investment in innovating and advertising its golf balls, including a golf ball for tour-level performance known as “TP5 Brand.” Callaway has a TP5 brand golf ball equivalent called “Chrome Tour” golf balls.

TaylorMade alleged a misinformation campaign, including through sales reps and influencers and promotion to third-party golf publications.

TaylorMade’s TP5 Brand golf balls allegedly have two layers of coating: the first inner layer is white paint, and the second outermost layer is “clearcoat” that has a low concentration of “optical brightener” for cosmetic and stain-resistance purposes. TaylorMade alleged that the optical brightener had no impact on ball flight, distance, spin trajectory, or any other performance attribute. However, the “clearcoat has the highest potential impact on ball performance in flight” and therefore, its intentional thin coating approach is allegedly a deliberate design decision to improve ball performance. “As such, the splotchiness on its balls under UV light is Plaintiff’s design choice to have a single, thin, clearcoat layer to prioritize performance and not inferior quality or performance.”

TaylorMade alleged that Callaway similarly applies two layers of coating to their Chrome Tour golf balls, but both layers contain clearcoat with optical brightener, resulting in a brighter appearance that allegedly does not increase quality or performance.

TaylorMade was not alleging that uneven paint application cannot impact golf ball performance or quality; rather, it claimed that Callaway’s UV light demonstration was an unreliable way to evaluate paint coverage, paint uniformity or golf ball quality and performance. “In fact, the UV light demonstration only reveals the distribution of optical brightener additives, a cosmetic ingredient that has no bearing on ball flight.” Thus, using a UV light demonstration to make comparative quality claims was false/misleading—but that is what Callaway allegedly did.

For example, one sales agent stated that the demonstration would show whether there is “too much paint” on the ball, and if so, would result in a “mudball.” “Mudball is a derogatory term used to describe a golf ball that has a bad flight, trajectory, shape and distance due to the presence of mud on the ball and is the ‘bane of any pro golfer’s existence.’” The sales rep claimed that dark spots on the ball could “potentially act like a piece of mud is on the ball and who knows where the ball is going to go... all about quality control.”

Thus, TaylorMade challenged the following claims: (1) the use of UV light can measure golf ball quality or performance; (2) the difference in appearance of golf balls under UV light are indicative of overall golf ball quality and performance, (3) the uniform appearance of Calloway’s golf ball dimples and brightness under UV light is indicative of superior quality or performance; (4) TaylorMade’s golf balls are “mudballs”; and (5) TaylorMade’s quality control is inferior to Callaway’s.

TaylorMade further alleged that the UV light test is unreliable, misleading, and lacks standardization “because it is highly sensitive to other variables including wavelength and intensity of UV light, distance and angle of which the light is held, the duration of the UV light exposure, prior UV exposure, and ambient lighting conditions, none of which can be standardized.”

This campaign was allegedly extensive. For example, MyGolfSpy, “a popular digital platform with over 22 million consumers,” published “Callaway Doubles Down on Speed and Precision With New Chrome Tour, Chrome Tour X, and Chrome Soft Golf Ball” which contained several statements from the alleged misinformation campaign and had a “DIY side note” encouraging consumers to conduct their own UV light demonstration as a way to measure a golf ball’s quality and performance based on its “paint coverage.”

Callaway argued that its claims were puffery. A claim that golf balls act “like a piece of mud” due to the uneven paint coating on the ball which negatively impacts the ball’s ability to fly straight was a specific and measurable claim and not puffery, as were the other claims about UV light as a method of proof. The complaint explained why the UV light demonstration wasn’t reliable.

Did TaylorMade have standing under California’s UCL and FAL? Yes, it sufficiently pled lost sales: “because Defendant is a direct competitor, any alleged false misrepresentations about the quality and performance of TaylorMade’s golf ball will increase sales of Callaway’s golf balls and cause sales of TaylorMade golf balls to decrease.” Also, it was independently sufficient that TaylorMade allegedly lost money when it incurred financial expenses to combat the misinformation campaign by responding to inquiries from customers who saw or heard about the UV light demonstration.

What about reliance? In federal district courts, the majority view is that a plaintiff must allege its own reliance and not the reliance of third parties. But the court here adopted the minority view that a “competitor may allege false advertising claims under the UCL and FAL without alleging its own reliance and need only allege it suffered an injury, loss of money or property, as a result of the alleged misrepresentations.” [seems correct]

Given the alleged Lanham Act violation, “unlawfulness” UCL claims survived, as did unfairness claims, which would allegedly “encourage a race to the bottom” where competitors will resort to misleading demonstrations and pseudo-scientific claims rather than competing on the actual merits of their products.

"battery tender" isn't generic for guess what, but keyword advertising is fine

2026-08-14T12:13:00.000-04:00

Deltona Transformer Corporation v. NOCO Company, --- F.4th ----, 2026 WL 2236806, No. 24-13590 (11th Cir. Aug. 4, 2026)

Competitors aren’t generally allowed the same freedom as consumers to “genericize” a term. Here, the 11th Circuit finds no error in a district court’s holding that “battery tender” wasn’t generic, despite calling the product category at issue by that name throughout the opinion (“specialized vehicle-battery chargers called ‘battery tenders’”—they recognize when a battery is fully charged so they don’t overcharge and degrade it, an innovation when introduced). [What is the name of this specialized subcategory, if not “battery tender”? This is an exercise for the reader because the court sure won’t tell you, but moments in the opinion offer “battery-maintaining chargers” or “trickle chargers.”]

Deltona federal registrations for “Battery Tender” and “Deltran Battery Tender.” NOCO made similar charges and advertised its own products as “battery tenders.” A jury found for Deltona on its federal and state infringement claims, and further concluded that NOCO had engaged in false advertising in violation of federal law. The court of appeals kicked out some of the theories—specifically, based on keyword purchases and Lanham Act false advertising—and remanded to recalculate damages.

The allegedly infringing conduct: (1) bidding on Deltona’s marks as “keywords” and using them to trigger NOCO’s ads in Amazon search results; (2) using the term “battery tender” in the text of its own Amazon ads; (3) incorporating the term “battery tender” in its product descriptions on Amazon; and (4) holding out its chargers as “battery tenders” in communications with marketing firms and customers.

Category (1) couldn’t infringe, but the rest could. NOCO’s position was summarized by a sales manager: An email drafted by Nook and sent by a NOCO sales manager to a potential customer said, “We understand Battery Tender is a well known brand, but most customers usually refer to the function (battery tender meaning a trickle charger), than the actual brand.” Internal documents showed that NOCO was willing to use “tender” and “battery” in ways that were “passive aggressive.”

The director of advertising at a company that handles Deltona’s marketing testified that one of its customer-service agents spoke to a consumer who had initially reached out to NOCO and was “very confused” when one of its employees “referr[ed] to [NOCO’s] products as a battery tender charger.” And an email exchange in the record shows that a retailer considering whether to stock a new line of battery tenders reached out to NOCO with an inquiry about Deltona’s product.

The jury held that Deltona was entitled to actual damages of $1.3 million and that NOCO had committed intentional misconduct or gross negligence, entitling Deltona to punitive damages of $5.75 million. The district court ordered NOCO to disgorge profits of over $12 million and issued a permanent injunction. The injunction prohibited NOCO from “selling, marketing, advertising, [or] promoting” its products using the terms “Battery Tender,” “Deltran Battery Tender,” “Deltran,” or “Tender,” the latter of which was included because “[t]here was abundant evidence that [the company’s] use of ‘tender’ on its own was done in a way that caused customer confusion and infringed [Deltona’s] Marks.” The injunction exempted keyword purchases and comparative advertising.

Deltona had a genericity survey, but the jury could have rejected it. The marks weren’t inherently generic because they were registered; they were descriptive with acquired secondary meaning. “The fact of registration puts a heavy thumb on the scale against genericness.” [Does that mean that the burden is clear and convincing evidence? Or something else?]

“Battery tender”

entails some level of abstraction—“tend[ ]” is more a metaphorical than literal description of what a battery tender does, which is to preserve the battery by maintaining its charge. That makes “battery tender” more like “vision center”—which might sell glasses and contact lenses but doesn’t literally sell “vision”—than, say, “liquor store”—which is nothing more than a store that sells liquor. Indeed, the term “battery tender” might even be suggestive; it “suggest[s] characteristics of the good[ ]” and seems to require at least some “effort of the imagination” to understand how the product works.

Sigh. Nothing has “inherent” meaning with the partial exception of onomatopoeia.

Deltona’s co-founder made up the term based on an analogy to a ship’s tender. [But if he made it up to identify this new category and distinguish it from prior types of chargers, that shouldn’t matter—“dry ice” didn’t have to be the term for solid carbon dioxide.] The court says that, “as a matter of historical fact, it’s not accurate to say that ‘battery tender’ referred from the very beginning simply to ‘a kind of battery-charging device,’” but doesn’t explain what the generic word was at the very beginning.

NOCO’s consumer survey found that 78% of 558 respondents reported that they believed that “Battery Tender [was] a type of product” rather than a reference to a particular brand. The jury was free to reject that, though; Deltona had challenged the survey’s methodology on the ground that it included people who might simply have been “exposed” to battery tenders [generic use again!] “from shopping near [them]” when walking through an automotive store or department.

The court then held that keyword bidding alone can’t be trademark infringement because the use of the plaintiff’s mark for keyword-bidding purposes occurs “behind the scenes.” [Twenty years later, they figure this out. Sincerely: thanks, Abitron!] Likelihood of confusion “turn[s] on what the consumer s[ees] on the screen and reasonably believe[s], given the context.” (Citing Eric Goldman and the Second, Ninth, and Fifth Circuit cases to similar effect.)

Use in product titles and product descriptions on Amazon, however, was potentially infringing, as was use in communications with marketing firms and consumers, so that part of the award was upheld. Unlike keyword advertising, “[t]he inclusion of ‘battery tender’ in the description automatically not only affected Amazon search results but also drove shoppers searching for Deltona’s battery tenders to NOCO chargers without alerting them in any way—through a ‘sponsored’ tag or otherwise—that they weren’t really looking at battery tenders.”

“A reasonable jury certainly could have concluded that these explicit statements to customers—that ‘battery tender’ was a generic term—were likely to confuse them.” (Confuse them about what? Not about source or sponsorship, given the statement that it was generic.)

The Florida Deceptive and Unfair Trade Practices Act damages award was also problematic, even though the Lanham Act violation could also violate FDUTPA. Monetary relief in the form of actual damages is available only to a “person who has suffered a loss as a result of a violation of this part,” and Florida law generally defines actual damages as “the difference in the market value of the product or service in the condition in which it was delivered and its market value in the condition in which it should have been delivered.” Thus, Deltona couldn’t base its damages on “harm to its reputation or goodwill,” because consequential damages like that aren’t compensable under FDUTPA.

Finally, the district court erred by instructing the jury on false advertising under the Lanham Act based on the same conduct. Deltona’s complaint alleged unfair competition and false designation of origin under the Lanham Act; it never separately articulated a false advertising theory. It was not enough to use the phrase “misleading description and representation of fact,” when read in conjunction with the complaint’s “numerous allegations involving advertisements” and its generic citation to § 43(a), to warrant a separate jury instruction on false advertising under § 43(a)(1)(B). In context, the complaint clearly referred to § 43(a)(1)(A). NOCO neither expressly nor impliedly consented to trying a false-advertising claim.

The court of appeals had “substantial and ineradicable doubt” whether the jury was properly guided, so that part of the judgment was reversed.

Disgorgement was appropriate, given the willful conduct. [Recalculation doesn’t seem to be required because of how disgorgement is assessed—even kicking out the keyword advertising doesn’t seem to matter (though you’d think that sales made through keyword ads alone wouldn’t have the right causal relationship).]

Also ok: an injunction extending a ban on standalone use of “tender.” “[E]ven though NOCO seems to have ceased its misconduct, the record shows that it has, after brief interludes, repeatedly returned to infringing Deltona’s marks.” “In fashioning relief against a party who has transgressed the governing legal standards, a court of equity is free to proscribe activities that, standing alone, would have been unassailable.”

But the damage award needed to be reassessed, so remand for a new trial it was.