News & Analysis as of

Lanham Act Advertising Appeals

BakerHostetler

To NAD or Not to NAD: How Being a Challenger in a Self-Regulatory Dispute May Land You in Federal Court

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We get asked all the time to lay out the pros and the cons of different ways a company can challenge a competitor’s false advertising. And no surprise -- we are big fans of the National Advertising Division (NAD) process,...more

Dorsey & Whitney LLP

Wavy Baby’s Shoes Not Entitled to Special First Amendment Protections

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40 years ago, I was the new kid in 6th grade – truly a terrible age in a young girl’s life to try and “fit in” at a new elementary school in a small town. But, one of my best memories from that year was procuring my first...more

Patterson Belknap Webb & Tyler LLP

Two (Out of Three) Thumbs Down: Divided Ninth Circuit Panel Rules Rigged Product Reviews Can Be Actionable False Advertising

When you’re in the market for a fresh haircut or a new restaurant, innumerable business and product reviews are available to guide you towards a cleaner trim or tastier takeout. But what happens when the reviewer is not an...more

McDermott Will & Emery

Agreement to One Is Not Consent to All

McDermott Will & Emery on

Addressing a myriad of issues involving unauthorized use of professional models’ photographs for gentlemen’s clubs’ promotional materials, the US Court of Appeals for the Second Circuit held that the district court erred in...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

2020 Advertising Law Year in Review

While 2020 was an eventful year in the world of advertising law, it feels wrong to begin any type of “year in review” without acknowledging the global events of this year, and the challenges they have brought to every...more

Katten Muchin Rosenman LLP

Kattison Avenue | Issue 3 - Summer 2020

Gambling With Graffiti: Using Street Art on Goods or in Advertising Comes With Significant Risks - Graffiti. Guerrilla Art. Street Art. Aerosol Art. Tagging. It appears on the sides of buildings, highway signs, boundary...more

Knobbe Martens

IN RE: SINY CORP.

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Before Prost, Lourie and Stoll. Appeal from the Trademark Trial and Appeal Board. Summary: In evaluating whether a webpage printout is an acceptable specimen of use for a trademark in connection with goods, the USPTO may...more

Knobbe Martens

Can Ear Plugs Tune Out Color? Bright Green Color For Ear Plugs Not Functional

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Moldex-Metric, Inc. filed a trademark infringement lawsuit against McKeon Products.  Moldex-Metric asserted that McKeon infringed its unregistered trade dress consisting of a bright green color for foam ear plugs by using a...more

Eversheds Sutherland (US) LLP

“Use It or Lose It”: Service Mark Registration Canceled When Application Supported Only by Advertising

On March 2, 2015, the U.S. Court of Appeals for the Federal Circuit issued its first-ever ruling addressing use requirements for registering service marks. The court held that offering a service, without the actual rendering...more

McDermott Will & Emery

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

McDermott Will & Emery

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

McDermott Will & Emery

Two-Party Market: Presumption of Confusion and Injury

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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

Sheppard Mullin Richter & Hampton LLP

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

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