Lawrence Weinstein

Lawrence Weinstein

Proskauer Rose LLP

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Out of Align-ment: Sixth Circuit Affirms Class Certification in Probiotics Case

A recent Sixth Circuit decision that affirmed certification of a multi-state consumer class action asserting false advertising claims concerning Align – a Proctor & Gamble probiotic product promising digestive health benefits...more

9/11/2015 - Class Action Class Certification Clinical Trials Commonality Dukes v Wal-Mart False Advertising Proctor & Gamble SCOTUS

Makers’ Mark Two: Bourbon Distiller Slips another “Handmade” False Advertising Suit

In another blow to consumers that demand absolute rustic authenticity from their top-shelf bourbon purchases, a court in the Southern District of California has dismissed a false advertising class action against Maker’s Mark...more

9/2/2015 - Class Action Dismissal With Prejudice False Advertising Product Labels Putative Class Actions Safe Harbors TTB Unfair Competition

Uber Ordered to Buckle Up for Litigation: Taxicab Plaintiffs Ride out (in part) Uber’s Motion to Dismiss False Advertising Claims

A group of California taxicab companies sued Uber in federal court in San Francisco for falsely advertising the safety of Uber rides and for disparaging the safety of taxi rides. Uber moved to dismiss plaintiffs’ Lanham Act...more

8/21/2015 - Commercial Speech False Advertising Lanham Act Puffery Restitution Standing Taxi Cabs Uber Unfair Competition

Sun-Blocked: California Court Dismisses Sunscreen Labeling Case

It’s summertime, and for many of us that means buying and applying sunscreen. Lots of it. Indeed, when selecting sunscreen rated at, say, SPF 30, we rely on national standards promulgated by the FDA. It thus comes as no...more

8/12/2015 - False Advertising FDA Labeling Neutrogena Preemption Product Labels Product Packaging Safe Harbors Unfair Competition

Procera AVH Marketers Can Forget About Claiming to Reverse Memory Loss

It turns out that there is not a magic pill capable of reversing the effects of aging on the human brain, including memory loss, or at least not one we can remember right now. The FTC recently reminded the marketers of...more

7/31/2015 - Advertising Civil Monetary Penalty Dietary Supplements False Advertising FTC Permanent Injunctions Settlement

Clarification for Class Action Settlements May Be on the Line As Supreme Court Grants Cert in TCPA Case

Last year, in Gomez v. Campbell-Ewald Co., No. 13-55486, 2014 WL 4654478 (9th Cir. Sept. 19, 2014), the U.S. Court of Appeals for the Ninth Circuit held that offers of complete relief made to individual plaintiffs under Fed....more

7/19/2015 - Certiorari Class Action False Advertising Mootness Offer of Judgment Popular Rule 68 SCOTUS Settlement Settlement Offer TCPA

Beer-Maker Puts an End to Brewhaha: Anheuser Busch Agrees to Settle Second of Two Class Action Lawsuits over Beer Origin...

Anheuser Busch recently agreed to settle a consumer class action over Beck’s Beer labeling that we previously reported on with regard to the uptick in consumer class actions proceeding past the pleading stage in the Southern...more

7/10/2015 - Anheuser-Busch Attorney's Fees Class Action False Advertising Injunctions Labeling Motion to Dismiss Puffery Settlement

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

A lawsuit between Procter & Gamble (“P&G”) and Hello Products (“Hello”) – a toothpaste start up that promotes its products as “naturally friendly” – settled last week with the entry of a stipulated injunction, but Hello might...more

6/18/2015 - Discovery False Advertising Lanham Act Leave to Amend Preliminary Injunctions Proctor & Gamble Settlement Unfair or Deceptive Trade Practices

Appealing a Trademark Registration Refusal? Win or Lose, You May Have to Pay the USPTO’s Legal Fees

The federal Trademark Act (the Lanham Act) instructs that if an unsuccessful trademark applicant appeals a refusal to register in federal district court, the applicant must name the Director of the U.S. Patent & Trademark...more

6/12/2015 - American Rule Attorney's Fees De Novo Standard of Review Lanham Act Legal Fees Trademark Act Trademark Registration Trademark Trial and Appeal Board Trademarks USPTO Venue

Catch of the Day: Tuna Fish Brand StarKist Swims into a Sea of Trouble After Agreeing to Settle Claims Against It

StarKist Co. recently agreed in principle to a $12 million settlement with a putative class of plaintiffs concerning alleged under-filling of tuna fish cans. But agreeing on the dollar figure seems to have been the easy part;...more

6/5/2015 - Class Action CLRA False Advertising Settlement Unfair Competition

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

In a decision that will interest distillers and hipster connoisseurs of artisanal beverages alike, a district court in the Northern District of Florida has decided that Maker’s Mark can describe its whiskey as “handmade”...more

5/21/2015 - Advertising Class Action False Advertising Wine & Alcohol

In Consumer Class Actions, Discovery is not Insured

Consumer class action defendants in New Jersey state courts may be able to avoid costly discovery following a New Jersey state appeals court’s recent affirmance of a pre-discovery denial of class action certification in Myska...more

5/15/2015 - Class Action Defense Strategies Discovery

The Bryant Park Hotel Denied Preliminary Injunction in Trademark Dispute

The Bryant Park Hotel has been using its registered trademarks, including the well-known mark THE BRYANT PARK HOTEL, in connection with hotel, restaurant, and bar services since 2001, but U.S. District Judge Rakoff found that...more

5/7/2015 - Hospitality Industry Hotels Judge Rakoff Likelihood of Confusion Restaurant Industry Trademarks

SCOTUS Opts Not To Remand Case Raising Preclusion Question Answered in B&B Hardware

On April 27, the Supreme Court surprisingly denied certiorari in Escamilla v. M2 Tech., Inc., U.S., No. 14-1012 rather than remanding the case for further consideration in light of the High Court's recent decision in B&B...more

4/30/2015 - B&B Hardware v Hargis Industries Issue Preclusion Likelihood of Confusion Remand SCOTUS Trademark Litigation Trademark Trial and Appeal Board Trademarks

Tripping the Light Cran-tastic: Ocean Spray Washes Away Attempted Class Certification

Class certification in false advertising cases often fails due to problems with the class itself such as ascertainability. But what happens when a class action plaintiff admits she didn’t rely upon the purportedly deceptive...more

4/10/2015 - Advertising Class Action Class Certification False Advertising Food Labeling Ocean Spray

The Stakes in Your TTAB Opposition Proceeding Just Went Way Up: Trademark Trial and Appeal Board "Likelihood of Confusion"...

Yesterday the United States Supreme Court issued a landmark ruling in B&B Hardware, Inc. v. Hargis Industries, Inc. et al., case number 13-352, 575 U.S. ___ (2015), holding that likelihood of confusion determinations by the...more

3/26/2015 - B&B Hardware v Hargis Industries Issue Preclusion Likelihood of Confusion Registration SCOTUS Trademark Infringement Trademark Trial and Appeal Board Trademarks

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

Art is no stranger to great controversy, although the arbiters of art world disputes are usually critics and artists rather than federal judges. Nevertheless, in early March, Judge Denise Cote of the Southern District of New...more

3/19/2015 - Advertising Antitrust Investigations Defamation False Advertising Fine Art Lanham Act Popular

Cereal Killer: NAD Un-Sweetens Some of MOM’s Breakfast Cereal Claims

A recent National Advertising Division (“NAD”) decision serves as a reminder that comparative taste preference claims can quickly sour without methodologically sound substantiation. Taste-testers (and advertisers) should take...more

3/18/2015 - Advertising Food Manufacturers NAD

False Advertising Suit Concerning Department of Defense Standards Misfires

In a case that teaches important lessons about the burden of proving an advertisement false at trial, Judge Ronald Lew of the Central District of California held that Elkay Plastics Company was not liable for allegedly false...more

3/6/2015 - Advertising DOD False Advertising Procurement Guidelines Technical Standards

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

While courts may not officially be in the business of ghostbusting, a district court in California recently offered some support to a blender manufacturer apparently haunted by a phantom reviewer. The court found that...more

3/5/2015 - Advertising Corporate Counsel False Advertising Interstate Commerce Lanham Act Online Reviews

No Longer at Lager-Heads: Anheuser-Busch Settles Claim over Kirin Beer’s Origin

Early this year, Anheuser-Busch settled a class suit filed against it by two Miami residents who alleged that the company was deceptively advertising Kirin beer as imported from Japan, when in fact it is brewed in the United...more

3/4/2015 - Advertising Anheuser-Busch Beer Class Action Deceptive Intent False Advertising Japan Labeling Manufacturers

Made in the USA?: Suit Against Nordstorm Alleging Misleading Jeans Labels May Proceed

How much of a product has to be “Made in the USA” for a company to label it as such, and who gets to decide? Those questions are raised by an ongoing action lawsuit before a federal court in the Southern District of...more

2/4/2015 - Class Action False Advertising Fashion Industry Labeling Nordstrom Inc. Retailers

Supreme Court Told That TTAB Preclusion Raises Constitutional Concerns

As reported in our September 23 Client Alert, the Supreme Court is set to hear argument on December 2 on the issue of whether likelihood of confusion findings by the Trademark Trial and Appeal Board (TTAB) are entitled to...more

11/14/2014 - Claim Preclusion Lanham Act Likelihood of Confusion Patent Infringement Patent Litigation Patent Trial and Appeal Board Patents SCOTUS

Don't Lose Your Trademark Through Careless Licensing

Trademark practitioners are well familiar with the requirement under U.S. law that trademark licenses must contain quality control provisions, and trademark licensors must actually exercise quality control in fact, to ensure...more

10/3/2014 - License Agreements Popular Quality Control Plan Trademark Litigation Trademarks

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