Category Archives: Lanham Act

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Arla’s Dairy Campaign Goes Sour After Court Enjoins Ad Claims Attacking rbST

Eighty-eight percent of consumers are willing to pay more for healthier foods. Manufacturers have responded by focusing marketing campaigns on the health and safety benefits of their products, often at the expense of their competitors. But when Arla Foods portrayed a seven-year old girl defining a common hormone used to increase milk production in cows … Continue Reading

Golden Rules: Counterfeits and the Olympics

Demand for Olympic merchandise in the United States is resurrected every 4 years by the fervor of the televised Games. Officially, authorized and licensed gear is readily available in stores and on the Internet; however, every iteration of the Games brings with it a flood of counterfeit Olympic goods as well. The broadcasting of this … Continue Reading

Survey Says: NAD Panel Weighs in on Surveys

In contrast to a general emphasis on new data and new claims at the 2015 NAD conference, NAD staff attorneys, advertising lawyers, and survey experts took the time to weigh in about the emphasis NAD will continue to place on traditional best practices of consumer surveys for claim substantiation or challenge.  Although online surveys programs … Continue Reading

The Ninth Circuit Reaffirms The Application Of The Primary Jurisdiction Doctrine To FDCA / Lanham Claims In The Post-POM Wonderful Era

In 2014, the Supreme Court decided POM Wonderful LLC v. The Coca-Cola Company, 134 S.Ct. 2228, which we have discussed in detail here, and here, and here.  In POM Wonderful the Supreme Court held that “Congress did not intend the [Food, Drug and Cosmetic Act] FDCA to preclude Lanham Act suits like POM’s.”  Since that … Continue Reading

Advertising Law Enters the Political Process

It is pretty rare for the Lanham Act and state law deceptive advertising cases to involve political candidates, but a case in Virginia shows how advertising law can be used to help candidates who have been harmed by entities trying to raise money using their name and likeness. We have more information on the political … Continue Reading

The Battle of the Two Flanax’s and the Power of the Mexico-United States Border

There are two Flanax’s.  Belmora LLC (“Belmora”) distributes Flanax, a brand of pain relief medicine, in the United States while Bayer has distributed a brand of pain medicine, Flanax, in Mexico for decades.  Bayer sought to cancel Belmora’s registered trademark for Flanax in the Trademark Trial and Appeal Board (“TTAB”).  Bayer won in that venue. … Continue Reading

Beastie Boys Win $1.7 Million Verdict, Underscoring the Importance of Clearing IP Rights

Launching an advertisement, production, or publication without obtaining the necessary third-party intellectual property (IP) rights can have costly consequences. A jury recently awarded the Beastie Boys and related plaintiffs $1.7 million in a lawsuit against Monster Energy for using Beastie Boys music and references to the Beastie Boys in a promotional video on Monster’s website … Continue Reading

Redskins Will Get Their Day in the “Rocket Docket” Court

The federal district court in Alexandria, Virginia denied a motion to dismiss the Redskins trademark case, making it clear that the “Rocket Docket” is open for business and ready to hear cases brought by parties who are dissatisfied with decisions made by the Trademark Trial and Appeal Board (TTAB).  Pro-Football Inc. v. Blackhorse, 14-cv-01043, U.S. … Continue Reading

A Whole New Lanham Act? A Look at Lexmark and POM Wonderful in Action

As we previously reported here on March 25, 2014 the United States Supreme Court issued its much-anticipated decision in Lexmark Int’l Inc. v. Static Control Components, Inc.  The decision resolved a three-way Circuit split, rejected the test in the Seventh, Ninth and Tenth Circuits that the plaintiff and defendant had to be direct competitors, and … Continue Reading

Don’t Let the Stars in Your Eyes Blind You to the Risks of Celebrity Ad Campaigns

It’s the time of year when we Americans honor the Stars and Stripes, but people all over the world get starry-eyed over celebrities.  Recognizing this, advertisers like to use celebrity images in advertising.  Recently, we wrote about Katherine Heigl’s $6 million lawsuit against Duane Reade for a tweet using her photo without her permission, and … Continue Reading

Supreme Court Opens Door to Food and Beverage Label Challenges Under Lanham Act

The United States Supreme Court paved the way today for competitors to challenge FDA-regulated food and beverage labels under the Lanham Act.  The Court’s opinion in POM Wonderful LLC v. The Coca-Cola Co. is the latest chapter in a long-running feud between POM Wonderful and Coca-Cola, which arose in 2008 when POM accused Coke of … Continue Reading

Not All Press Is Good Press

In ruling on a motion to dismiss counterclaims brought under Section 43(a) of the Lanham Act, the District Court of Oregon ruled that statements made by a corporate agent to a journalist may be actionable. In Skedko, Inc. v. ARC Products, LLC, the defendant counterclaimed for false advertising.  Both plaintiff and defendant manufacture and sell … Continue Reading

What’s in a Name? Dollars – At Least When You’re A Celebrity

Katherine Heigl, a star of the television series Grey’s Anatomy and films like Knocked Up and 27 Dresses, recently made non-TMZ headlines when she sued drugstore chain Duane Reade for $6 million dollars for posting a photo of her to its Twitter and Facebook accounts, accompanied the text “Love a quick #DuaneReade run? Even @KatieHeigl … Continue Reading

NAD Jurisdictional Fights Are Real Headaches

We all know that constant fighting is exhausting and can cause headaches or even stomachaches.  A challenger recently brought a fight over stomachache claims brought by headache medicine makers but NAD said enough is enough in these ongoing aspirin wars.  The recent McNeil Tylenol case sheds light on NAD’s views about the scope of its … Continue Reading
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