News & Analysis as of

Federal Circuit Confirms That Advertising Services Is Not Use in Commerce

In Couture v. Playdom, Inc., the Federal Circuit held that the use of a mark on a website to offer services is not use in commerce sufficient to support an actual-use service mark application. As a result, the Court affirmed...more

Statements Regarding Live Scientific Debate Still Subject to False Advertising Claim - Eastman Chemical Company v. PlastiPure,...

According to the U.S. Court of Appeals for the Fifth Circuit, even if scientific claims are the subject of live scientific debates, that status will not immunize such statements containing such claims from false advertising...more

No Presumption, but Inference of Irreparable Harm Permissible Under Lanham Act - Groupe SEB USA, Inc. v. Euro-Pro Operating LLC

Addressing interpretation of advertising claims when the packaging or label unambiguously defines a claim term and an inference of irreparable harm where the advertisements were literally false, the U.S. Court of Appeals for...more

Intellectual Property 2014 Year in Review

The year 2014 saw some important developments in the area of intellectual property law. A number of intellectual property-related issues even made national headlines. Who can forget the public debate over the rightful...more

Advertising Law - January 2015

SPECIAL FOCUS: Fifth Circuit Clarifies the Law on False Advertising Involving “Scientific Debates” - In 2013, the Second Circuit issued an important opinion in Ony, Inc. v. Cornerstone Therapeutics, Inc., a false...more

Advertiser Jumps the Gun With Brochure Touting Tests; Fifth Circuit Brushes Off First Amendment Challenge to Lanham Act Claims

Like claims for defamation or commercial disparagement, Lanham Act claims are viable only if they involve statements of fact, rather than opinion. But what happens if an advertising statement concerns an issue that is a...more

When Scientific Research Becomes False Advertising

Positive results of scientific research on a company’s products can provide a tempting topic for advertising and promotion. If an article published in a well-established, peer-reviewed journal says that your company’s...more

Beginning to Close the POM Circle? – POM Wonderful and Drug Advertising: JHP Pharmaceuticals

Earlier this year, in POM Wonderful LLC v. Coca-Cola Co.,[1] the Supreme Court examined the interaction between the Lanham Act’s prohibition against false advertising and the FDCA’s prohibition against food, drug and...more

October 2014: Trademark Litigation Update

Supreme Court Opens the Door to More False Advertising Claims. In a unanimous decision, Lexmark International Inc. v. Static Control Components, Inc., 134 S. Ct. 1377 (2014), the Supreme Court held that a plaintiff...more

Pom Wonderful Drops Ninth Circuit Appeal of State Claims Filed Against Coca-Cola

On September 19, 2014, Pom Wonderful, LLC dropped its Ninth Circuit appeal of a ruling that dismissed its state deceptive advertising and unfair competition claims against Coca-Cola, a sibling case to a recent Supreme Court...more

Advertising Law - October 2014 #3

Permanent Ban From Prize Promotion Business After Sweepstakes Scam - A sweepstakes operator agreed to a permanent ban from the prize promotion business pursuant to a settlement with the Federal Trade Commission after...more

Two-Party Market: Presumption of Confusion and Injury

Merck Eprova AG v. Gnosis S.p.A., et al. - Clarifying applicable presumptions in Lanham Act false advertising cases, the U.S. Court of Appeals for the Second Circuit affirmed a district court’s use of presumptions of...more

Supreme Court Allows POM Wonderful to Sue Coke for False Advertising, Despite Its Apparent Compliance with FDA Regulations

In a unanimous decision, the Supreme Court in POM Wonderful LLC v. The Coca Cola Co. (June 12, 2014) held that the Food, Drug, and Cosmetic Act (FDCA) does not preclude a private party from bringing a Lanham Act claim...more

The Supreme Court Resolves a Circuit Split Regarding Standing to Sue for False Advertising Under the Lanham Act

In Lexmark Int’l, Inc. v. Static Control Components, Inc. (March 25, 2014), the Supreme Court unanimously held that "to invoke the Lanham Act’s cause of action for false advertising, a plaintiff must plead (and ultimately...more

Third Circuit Nixes Presumption of Irreparable Harm in Comparative False Advertising Cases

Continuing a trend that began in 2006 with the Supreme Court’s decision in eBay Inc. v. MercExchange, L.L.C., the U.S. Court of Appeals for the Third Circuit has ended the practice of presuming irreparable harm in Lanham Act...more

Lanham Act Claims Are Not Precluded by Compliance with the FDCA

In POM Wonderful LLC v. Coca-Cola Co., decided last month, the U.S. Supreme Court confirmed that companies can bring unfair competition actions under the Lanham Act even when their competitors have complied with the Federal...more

Second Circuit Clarifies the Use of Legal Presumptions of Consumer Confusion and Injury in Certain Lanham Act Cases

On Tuesday, July 29, the United States Court of Appeals for the Second Circuit “clarified certain aspects of [its] false advertising jurisprudence” and held that, where literal falsity and deliberate deception have been...more

How Not To Market Your Business Online (Even If It Works): Claims Against Fake Review Sites And Stolen Obituary Photos Survive...

Despite celebrity endorsements from the likes of Dennis Miller and Alan Thicke, all that glitters isn’t gold when it comes to the marketing of precious metal investments. In March 2014, American Bullion, Inc., which is in the...more

What a Tangled Web We Weave, When First We Practice to Deceive: Second Circuit Holds that “Deliberate Deception” Creates Legal...

On July 29, the Second Circuit clarified its view that, in a two-player market, willfully deceptive advertising – even non-comparative advertising – creates a legal presumption of consumer confusion and injury, applicable to...more

Second Circuit Issues Decisions on Lanham Act False Advertising Case

On July 29, 2014, the Second Circuit decided a Lanham Act false advertising case that clarified the circuit’s jurisprudence on demonstrating consumer confusion and competitive injury. In Merck Eprova AG v. Gnosis S.P.A. and...more

Labeling Laws for the Food and Beverage Industry – Unfair Competition and Mislabeled Products

In a recent unanimous U.S. Supreme Court ruling, the court opened the door for private parties, including competitors, to bring false advertising and misrepresentation claims under the Lanham Act even if the product labels...more

Advertising Law - July 2014

Online Reviews Not Sufficient To Support Ad Claim, NAD Rules - While recognizing the benefits of using new sources of information, the National Advertising Division (NAD) decided that an advertiser’s use of aggregated...more

Supreme Court: FDCA Compliance Does Not Bar Lanham Act Claims

POM Wonderful LLC v. Coca-Cola Co. - In a unanimous decision, the Supreme Court of the United States reversed the U.S. Court of Appeals for the Ninth Circuit ruling that the Food, Drug, and Cosmetic Act (FDCA) and its...more

Pom v. Coke Will Impact Financial Services Too

Law 360, New York (June 23, 2014, 11:22 AM ET)--Legal and compliance departments, take note: the U.S. Supreme Court’s recent decision in Pom Wonderful LLC v.Coca-Cola Co. confirms that even i fan institution’s conduct meets...more

POM Wonderful Decision: Companies Cannot Rely on FDCA for Protection from False Advertising Liability

The US Supreme Court allows private parties to bring Lanham Act claims challenging product labels that otherwise satisfy the Food, Drug, and Cosmetic Act. In a battle of the beverages, the Supreme Court recently...more

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