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FTC Seal of Disapproval for “Selfie” Certification Marks

For many years, consumers have relied on certification marks like the Good Housekeeping Seal of Approval and the UL logo as an assurance of product quality. Administered by independent organizations, consumers reasonably...more

No Free Ride for Copycat Perfume Company – Fair Use Rejected, False Advertising Found, Accounting of Profits Awarded

Well-known perfume marketer Coty Inc. had a big win in New York federal district court, obtaining injunctive relief and $6.5 million dollars in an accounting of profits from copycat perfume seller Excell Brands, LLC. In an...more

The Latest Influencer Advertising Tips from the FTC – When, How & Where to Make Effective Disclosures

As we blogged about earlier this month, the FTC seems to have spent much of its summer checking out influencer advertising and focusing its attention on those who fail to make the necessary disclosures of material connections...more

The FTC Throws Shade at Influencer Bruhs Who Failed to Disclose Material Connections

We blogged last week about the FTC’s triple play against deceptive influencer advertising. In one prong of the initiative, the FTC announced that its staff had sent 21 follow-up warning letters to influencers, asking them to...more

Who Owns that Trademark? An Incomplete Answer Voids Application

A recent Trademark Trial and Appeal Board decision sustained an opposition based on the applicant’s failure to identify a co-owner at the time the application was filed, resulting in the application being declared void ab...more

Tea Rose, Swiss Cheese and Slam Dunk Evidence of Infringement – The 9th Circuit Weighs in on Remote Geographic Trademark Users

When two different companies adopt confusingly similar trademarks and use them in different parts of the United States, complications ensue. The adjudication of the respective rights of the parties will depend on the...more

Endorsement Disclosures on the Front Burner Again at the FTC

Last week, the FTC announced a Complaint and proposed settlement with two trampoline sellers, brothers Sonny and Bobby Le. The Les sold Infinity and Olympus Pro brand trampolines through three websites that touted...more

Who Owns That Trademark - The Manufacturer or the Exclusive Distributor?

The Court of Appeals for the Third Circuit, with a ringing endorsement of Prof. McCarthy’s trademark law treatise, issued a precedential opinion last week on the issue of whether a trademark is owned by the manufacturer or...more

Lack of Bona Fide Intent to Use and Its Consequences According to the 6th Circuit

The Sixth Circuit Court of Appeals recently issued an important decision about the bona fide intent requirement when filing an intent to use (“ITU”) application and the consequences when there is a lack of bona fide intent as...more

Crossing the Line – Two More NAD Decisions on Unsubstantiated Comparative Line Claims

Comparative advertising can be highly effective in touting the advantages of a company’s products against those of its competitor, but the language used must be carefully crafted and accompanying visual depictions should be...more

The Second Circuit Gets the Joke - Affirms Dismissal of Trademark Parody Lawsuit

Last January, we blogged about a district court decision involving trademark parody in Louis Vuitton Malletier, S.A. v. My Other Bag, Inc. In that decision, the court held that defendant My Other Bag had convincingly argued...more

Friends, Family and High Blood Pressure – FTC Takes Action Against Undisclosed Family Reviews and Unsubstantiated Claims for...

In previous posts, we’ve discussed the Federal Trade Commission’s significant enforcement efforts focused on two hot button issues: unsubstantiated health marketing claims and deceptive product endorsements. Once again, both...more

Comparative Advertising Do’s and Don’ts from the NAD – Part 2

Last week we blogged about a recent decision of the National Advertising Division of the Better Business Bureau, holding that two YouTube videos for Rayovac brand batteries misleadingly communicated an unsupported “line”...more

Comparative Advertising Do’s and Don’ts from the NAD – Part 1

Two recent decisions of the National Advertising Division of the Better Business Bureau provide helpful insights into how product performance comparisons should (and should not) be crafted to be considered fair comparative...more

11/28/2016  /  Advertising , Better Business Bureau , NAD

“Meandering Evening Stroll” Helps Defeat Preliminary Injunction Motion Against AMAZON FIRE TV

A recent decision by the United States Court of Appeals for the 11th Circuit highlights the perils of delay in filing a motion for a preliminary injunction in a trademark infringement case. In Wreal, LLC v. Amazon.com, Inc....more

Is Marriage a “Material Connection”? The FTC Challenges an “Independent” Expert Based on Marital Status

Medical endorsements can be powerful selling tools for health care products. But if a medical professional has a connection to the company marketing the products that would be material to consumers in evaluating the...more

A Diamond is Forever. What About Your Advertising Claim?

An advertising slogan like “A Diamond is Forever” may be eternal, but the same cannot be said about some comparative advertising claims. If a company advertises its product as superior to a competitive product, the ad claim...more

In What Way is False Advertising False and Why it Makes a Difference

What is the difference between an advertisement that is literally false by necessary implication and one that is impliedly false? It may seem like a fine (and somewhat opaque) distinction, but determining the particular way...more

POM Wonderful Returns – Lanham Act False Advertising Claim Against Home Pregnancy Tests Not Precluded by FDCA

On September 9, 2016, the Court of Appeals for the Second Circuit issued an interesting decision in a false advertising case involving a dispute between competitors in the home pregnancy testing market. Church & Dwight Co. v....more

Trump Hotel False Advertising Suit Against Culinary Workers Union Gets Chopped

Section 43(a) of the Lanham Act is generally considered a broad-based vehicle for asserting false advertising claims. For the owner and operator of the Trump Hotel Las Vegas, however, the statutory section was not broad...more

Brand Names as False Advertising and Other Lessons on Comparative Product Testing

In theory, a product brand name can communicate a false advertising message, but it doesn’t happen often in practice. Such an instance was found to have occurred according to a recent decision by the National Advertising...more

Empire State Building Trademark Owner Vanquishes Beer Logo Design

Can you trademark a building design? You can if the building in question is the Empire State Building. In the film classic King Kong, the iconic art deco building is the site of a titanic battle between Kong and the military...more

The Second Circuit Re-Visits Dawn Donut and the Geographic Scope of Injunctive Relief in Trademark Cases

More than half a century ago, the Court of Appeals for the Second Circuit issued an influential decision in Dawn Donut Co. v. Hart’s Food Stores, Inc., concerning the proper scope of injunctive relief in a trademark...more

How to Infringe a Certification Mark – The Second Circuit Counts the Ways

We blogged last week about a recent decision by the Court of Appeals for the Second Circuit in International Information Systems Security Certification Consortium, Inc. v. Security University, LLC, in which the Court...more

Nominative Fair Use of a Trademark: The Second Circuit Weighs In

If a defendant in a trademark case uses the plaintiff’s trademark, not to identify the defendant’s own products, but rather to refer accurately to the plaintiff’s products, is that trademark infringement? Called “nominative...more

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