Sandra Edelman

Sandra Edelman

Dorsey & Whitney LLP

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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

11/4/2016 - Amazon Internet Streaming Pornography Preliminary Injunctions Trademark Infringement

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

10/25/2016 - Advertising Corporate Counsel Endorsements Enforcement Actions FTC Stipulated Judgment Testimonial Statements Young Lawyers

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

10/4/2016 - Advertising Commercially Reasonable Efforts Counterclaims False Advertising Slogans

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

9/27/2016 - Appeals False Advertising Lanham Act Medical Devices

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

9/19/2016 - Corporate Counsel False Advertising FDA FDCA Issue Preclusion Lanham Act Medical Devices POM Wonderful v Coca Cola Premarket Approval Applications

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

9/8/2016 - Donald Trump False Advertising Hospitality Industry Lanham Act Motion to Dismiss Union Elections

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

7/15/2016 - Advertising Substantiation Bias Brand Comparative Advertising False Advertising NAD NARB

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

7/5/2016 - Dilution Lanham Act Likelihood of Confusion Trademark Litigation Trademark Trial and Appeal Board Trademarks

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

6/24/2016 - Corporate Counsel Injunctive Relief Likelihood of Confusion Logos Permanent Injunctions Trademark Infringement Trademark Litigation Trademarks Young Lawyers

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

6/16/2016 - Certifications Lanham Act Likelihood of Confusion Remand Summary Judgment Trademark Infringement Trademarks

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

6/8/2016 - Affirmative Defenses Certifications Corporate Counsel Fair Use Lanham Act Likelihood of Confusion Trademark Infringement Trademarks

Context Matters in False Advertising Cases – District Court Judge Denies Chobani Motion for Reconsideration of Scope of Injunction

In a further development in the yogurt false advertising battle between Dannon and Chobani, the federal district court has rejected Chobani’s request that it reconsider and limit the scope of the injunction it issued in late...more

4/29/2016 - Chobani Inc Competition Dannon False Advertising Motion for Reconsideration Preliminary Injunctions Puffery

Who Should Own a Trademark Registration? The Case of the Not-So-Related Parent Company

A recent precedential Trademark Trial and Appeal Board decision provides valuable guidance on the proper allocation of trademark registration ownership as between a corporate parent and a subsidiary, highlighting the perils...more

4/20/2016 - Corporate Counsel Lanham Act Parent Corporation Precedential Opinion Subsidiaries Trademark Cancellation Trademark Litigation Trademark Registration Trademark Trial and Appeal Board Void ab initio Young Lawyers

#Ad! — Lessons from the FTC’s First Case since the Release of its Enforcement Policy on Native Ads

As was widely reported, the Federal Trade Commission entered into a settlement in March with Lord & Taylor over charges that the retailer allegedly deceived consumers through a native advertising campaign run on Instagram and...more

4/13/2016 - Consent Order Disclosure Requirements FTC Instagram Lord & Taylor Native Advertising Online Advertisements Settlement Social Media Sponsored Ads

The Truth of the Matter – A Successful Defense to Defamation and Product Disparagement Claims

Years ago, a potential client called to ask if she could be successfully sued for libel if she published a tell-all memoir, revealing the details of a marital affair with a gentleman she intended to identify. My first...more

3/16/2016 - Affirmative Defense Broadcasting Business Disparagement Corporate Counsel Defamation Fox Television Stations Journalists Libel Summary Judgment

Oscar “Swag Bag” Gets Booted From the Red Carpet By The Academy—Don’t Let This Happen To You!

In a recent post, we provided guidance on how an advertiser might execute a Super Bowl-related promotion even if it is not an authorized game sponsor. First, avoid mentioning the trademarked name of the event — instead,...more

2/24/2016 - Contests & Promotions False Advertising Film Industry Misleading Impressions Right of Publicity Social Media Trademark Infringement

Chobani Yogurt Ad Campaign Enjoined – A Healthy Result for Yoplait and Dannon

When I opened up a newspaper a few weeks ago and saw an ad by Chobani for its Simply 100 Greek Yogurt, my first thought was, “that’s going to provoke a false advertising dispute.” Here’s what Chobani said about its competitor...more

2/10/2016 - Chobani Inc False Advertising False Statements Food Manufacturers General Mills Likelihood of Success Misleading Statements Preliminary Injunctions

Black Ops Mission Accomplished by Federal Trademark Registration

A recent district court decision granting a preliminary injunction in The Brooklyn Brewery Corp. v. Black Ops Brewing, Inc. demonstrates the advantage of owning a federal trademark registration when products bearing the...more

1/28/2016 - Lanham Act Likelihood of Confusion Likelihood of Success Preliminary Injunctions Trademark Infringement Trademark Litigation Trademark Registration Young Lawyers

Going Native? Part 2: The FTC’s Native Advertising Guide for Businesses – The Why, When and How of Effective Disclosures

At the end of December, we blogged about the FTC’s long-awaited Enforcement Policy Statement on Deceptively Formatted Advertisements. Along with the policy, the FTC issued a Guide for Businesses that contains seventeen...more

1/26/2016 - Corporate Counsel Disclosure Requirements FTC Native Advertising Transparency Truth in Advertising

Louis Vuitton and My Other Bag – Do You Get The Joke?

In a recent post, we discussed the trademark parody defense in the context of a California district court decision holding that the owner of the Superman “S” logo had adequately stated infringement claims asserted against a...more

1/21/2016 - Copyright Infringement Dilution Fair Use Lanham Act Parody Trademark Infringement Trademark Litigation

Superman, Superdad, and the Limits of a Trademark Parody Defense

Superman has triumphed yet again, this time with help from the federal court in the Central District of California. It wasn’t actually Superman that scored this particular victory, but DC Comics, owner of the trademark rights...more

1/7/2016 - DC Comics Likelihood of Confusion Parody Popular Trademark Infringement Trademark Litigation Trademarks Young Lawyers

Going Native? The FTC’s Enforcement Policy Statement on Deceptively Formatted Advertisements Provides a Roadmap – Part 1

Last week, the FTC issued its long-awaited Enforcement Policy Statement on Deceptively Formatted Advertisements, often referred to as “native advertising.” For those unfamiliar with the term, the FTC helpfully explains that...more

12/29/2015 - Disclosure Requirements FTC Native Advertising Online Advertisements Policy Statement Unfair or Deceptive Trade Practices

A Fight Over the Abandoned STRATOTONE Guitar Brand – Federal District Court Picks a Winner

A recent federal district court decision involving the iconic STRATOTONE guitar brand, Agler v. Westheimer Corp. illustrates two important principles concerning the law of trademark abandonment: First, once a mark is deemed...more

12/17/2015 - Abandonment Motion for Summary Judgment Trademark Litigation Trademarks

Instagram and the #FreeLunch: FTC Guidelines on Social Media Endorsements

With Thanksgiving behind us and the holiday season in full swing, many of us will be dining out at local restaurants and picking up sumptuous desserts to bring to dinner parties. Looking for restaurant and bakery...more

11/30/2015 - Disclosure Requirements FTC Endorsement Guidelines Instagram Marketing Photographs Social Media

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