News & Analysis as of

Commercial Speech Lanham Act

Proskauer - Advertising Law

Judge Recommends Lanham Act Litigant “Shake it Off”

Judge Joshua D. Wolson of the U.S. District Court for the Eastern District of Pennsylvania recently dismissed a Lanham Act suit that challenged critical comments on a blog (not this one!).  The case was brought by plaintiff...more

Ervin Cohen & Jessup LLP

Can Product Reviews Be Subject To Lanham Act Liability?

On January 22, 2021, a divided Ninth Circuit panel ruled that a nutritional guide could constitute commercial speech subject to the Lanham Act. The Lanham Act is best known for being the primary federal trademark statute...more

Proskauer - Advertising Law

YouTube Schools PragerU on Lanham Act in Censorship Case

The Ninth Circuit recently affirmed the district court’s dismissal of an action brought against YouTube and Google by a non-profit educational and media organization alleging a violation of the First Amendment and false...more

Ballard Spahr LLP

Pennsylvania Federal Court Holds Consumer Review Website Was Not Engaged in Commercial Speech

Ballard Spahr LLP on

A federal district court in Philadelphia ruled last month that product reviews featured on two consumer-review websites were not commercial speech in the case of GOLO, LLC v. HighYa, LLC, No. 17-2714 (E.D. Pa.)....more

Proskauer - Advertising Law

Lanham Act Injunction Floored Where Social Media Criticisms Were Not “Commercial Advertising”

A judge in the Western District of Wisconsin recently denied a motion for a preliminary injunction that sought to prevent a customer from criticizing the plaintiff’s products over social media. Buckeye Int’l v. Schmidt Custom...more

Mintz - Trademark & Copyright Viewpoints

After the Supreme Court Touchdown, Washington Redskins Are Finally Winning at the Fourth Circuit and the PTO

Two incredible things happened in 1992 for the NFL football team Washington Redskins. It won the Super Bowl and applied to register a trademark Washington Redskins. It has not been so lucky ever since. It has not won another...more

Knobbe Martens

In Re: Erik Brunetti

Knobbe Martens on

Federal Circuit Summaries - Before Dyk, Moore, and Stoll. Appeal from the Trademark Trial and Appeal Board. Summary: The bar in § 2(a) of the Lanham Act against registering immoral or scandalous trademarks is an...more

Akin Gump Strauss Hauer & Feld LLP

Federal Circuit Strikes Down Statute Banning Scandalous and Immoral Trademarks

• The Federal Circuit held that the “immoral or scandalous” clause of Lanham Act § 2(a), which prohibits registration of a trademark that “consists of or comprises immoral or scandalous matter,” is unconstitutional under the...more

CMCP - California Minority Counsel Program

In Matal V. Tam, Scotus Rules Prohibition On Disparaging Trademarks Unconstitutional

The Asian American members of the band the Slants adopted that name to “reclaim” and “take ownership” of the derogatory term. The United States Patent and Trademark Office (“USPTO”) refused to register a trademark application...more

Foley Hoag LLP - Making Your Mark

Of Slants, Skins, And Signs: Section 2(a) Prohibition of Disparaging Trademark Registrations Struck Down!

Well, that happened! According to the Supreme Court’s opinion in Matal v. Tam, Section 2(a) of the Lanham Act, which purports to prohibit the registration of marks that “disparage . . . persons,” is unconstitutional. ...more

Bass, Berry & Sims PLC

Supreme Court Holds that First Amendment Protects Disparaging Trademarks

Bass, Berry & Sims PLC on

This week, the U.S. Supreme Court emphasized the importance of broad free speech protection in striking down a statute that allows the U.S. Patent and Trademark Office (USPTO) to refuse registration of disparaging trademarks....more

Carlton Fields

More Bad News for Uber, This Time From the Southern District of California

Carlton Fields on

Uber’s attempts to defeat a false advertising lawsuit recently failed. The Southern District of California largely denied the ride share company’s motion to dismiss and motion to strike class allegations. ...more

Proskauer - Advertising Law

Michigan District Court Won’t Hear Lanham Act Claim Against Tinnitus Treatment Certifier

Last week, we covered a summary judgment decision holding that posts on the “Science-Based Medicine” blog were not “commercial speech” under the Lanham Act, and therefore the defendant in that case was not liable for false...more

Proskauer - Advertising Law

No Scrubs Permitted: Eleventh Circuit Affirms Blog Post Is Not Advertising Actionable Under Lanham Act

In an interesting recent opinion, the Eleventh Circuit held that a doctor’s blog post criticizing another doctor and his clinical practice could not form the basis of a Lanham Act claim because the blog posts were not...more

Manatt, Phelps & Phillips, LLP

Advertising Law - March 2016 #2

SPECIAL FOCUS: Lord & Taylor Settles With FTC for Not Disclosing Native Ads - Less than three months after the Federal Trade Commission issued its December 2015 Policy Statement and Business Guide on native advertising...more

Kelley Drye & Warren LLP

Eighth Circuit Tells Former NFL Players: Your Right Of Publicity Claims Are Preempted By The Copyright Act

The Eighth Circuit recently rejected three former NFL players’ appeal of a district court’s dismissal of their right of publicity claims, among other claims. John Frederick Dryer, Elvin Lamont Bethea, and Edward Alvin White...more

Proskauer - Advertising Law

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

McDermott Will & Emery

Federal Circuit Vacates Panel Decision on Disparaging Trademark and Orders En Banc Hearing - In re Tam

The U.S. Court of Appeals for the Federal Circuit issued a sua sponte order vacating its April 20, 2015, decision in In re Tam to consider the constitutionality of Section 2(a) of the Lanham Act, which provides that the U. S....more

Mintz - Trademark & Copyright Viewpoints

A Scandalous Mark to Some, Free Speech to Others: Federal Circuit to Decide Whether Controversial Limit on Trademark Registrations...

The Federal Circuit has decided to revisit the constitutionality of Section 2(a) of the Lanham Act in the case of In re Shiao Tam, 2015 U.S. App. LEXIS 6840 (Fed. Cir. Apr. 27, 2015). Section 2(a) of the Lanham act allows the...more

Manatt, Phelps & Phillips, LLP

Advertising Law - Mar 14, 2014

Sue Like Mike: Jordan Wins Reversal in Publicity Rights Suit - An advertisement congratulating Michael Jordan on his induction into the Basketball Hall of Fame constituted commercial speech, the Seventh U.S. Circuit...more

Manatt, Phelps & Phillips, LLP

Advertising Law -- Jan 24, 2014

SPECIAL FOCUS: Exploring the Ony Decision and Its Impact on False Advertising Claims Involving Scientific Findings - Last year, the Second Circuit issued an opinion in Ony, Inc. v. Cornerstone Therapeutics, Inc., a...more

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