Large Damage Award in 43(a)(1)(B) case re lead paint removal – S. Carolina

Collecting permit fees from homeowners, then not filing for the permits, is likely not compliance with ‘strictest industry standards.’


The Camouflage Clearly States ‘Non-foliage’


False Advertising Cause Maintained in Our “Trademark Scammer” Case

This is a lawsuit my firm filed against a company that we allege is a ‘trademark scammer.’ Defendants moved to dismiss. The Court maintained our false advertising claim. 43(b)log comments here.

leason ellis v pta.pdf


43(a) Action re ‘Anti-Microbial’ Keyboards

As if I didn’t have enough on my mind, after reading this complaint about allegedly false statements about whether there is enough silver in defendant’s keyboards to make them ‘anti-microbial’, I am now worried about microbes in my keyboard. Quick, get the compressed air.

man _ machine v seal shield.pdf


A&P v Stop & Shop re "Save More Every Time You Shop""

Defendant supermarket’ ran two ads titled “Save More Every Time You Shop”, one with a subtitle “Eileen Saved 9% at Stop & Shop” and one with a subtitle “Diane Saved 19% at Stop & Shop.” The ad indicates that on two specifed days, the same items purchased at the A&P were correspondingly less at the Stop & Shop. Among other issues, plaintiff alleges that the claim is false as a one-time price check doesn’t justify the claim that Stop & Shop’s prices are lower every time. Furthermore, for the two days cited in the ads, no customer records could be found matching the amounts of the purchase orders claimed in the ads (para. 24).
Complaint a&p Stop&Shop False Advertising


That's Who That Is? SwipeBids v QuiBids – Fake Blogs, Fake Reviews and Melissa Theuriau

melissa theuriau.JPG
SwipeBids and QuiBids are ‘pay per bid’ auction sites. They will promote prior sales of popular consumer electronics and other items for very low prices. For example, on SwipeBids right now, it indicates that it sold an Apple MacBook Pro for $387, and a $20 Amazon Gift Card for $2. How do they do it? Bidders pay a membership fee, and then pay some small amount (say .50) to bid. The economics are similar to those of a lottery – the bidder buys a cheap ticket, the house’s revenues of the bids tends to exceed the value of the item (especially since people likely place multiple bids on an item).
SwipeBids alleges that QuiBids stole copyrighted content, fabricated news stories, fabricated customer testimonials and wrongfully misappropriated the image of French news anchor Melissa Theuriau. This is the second SDNY case this summer containing allegations of ‘fake reviews’ as false advertising.
And If you know Melissa Theuriau, please tell her that her image may have been wrongfully used.
Complaint Swipebids Quibids Copyright False Advertising


"Fake" Review Sites As False Advertising

Plaintiff Budget Van Lines alleges that defendant MovingScam.com purports to be a review site of moving sites, not properly disclosing that it has ties to its favorably-rated moving companies.
Complaint Budget Van Lines Moving Scam


"Planted" Articles About Spoiled Spices Not Actionable Under 43(a)

I agree with 43(B)log: this ‘commercial speech’ case has interesting ramifications wrt ‘anonymous’ plants and false advertising:
The FDA seized one shipment of plaintiff’s product (West Indian spices) because it was tainted. A local newspaper targeting the West Indian community reported on the seizure in an article that ‘reads as if’ it were written by one of plaintiff’s competitors. The implication of the news article is that you should avoid all of plaintiff’s products. One of plaintiff’s competitors distributes the article via email. Plaintiff sues the competitor (and, seemingly, not the newspaper) for defamation and false advertising (alleging that competitor was responsbile for publication of the article in the first place). Competitor moves to dismiss,
Defamation claim upheld on a motion to dismiss. The article’s over-stating of the significance of the seizure (that the public should be suspicious of ALL of plaintiff’s product as a result of one seizure), strips away fair-reporting and truthfulness defenses.
Here’s the interesting part of the decision: The Lanham Act claim was dismissed because the competitor’s name doesn’t appear in connection with the article and therefore doesn’t propose a commercial transaction with competitor, even if the competitor paid the publication to run the article. Even competitor’s email (identifying competitor and inviting discussion) doesn’t propose a commercial transaction. No commercial speech.
So the lesson is: your client’s should pay publications to run articles that slag the competition, just don’t mention client and just steer clear of defamation.
Decision Bedessee Beharry


Housewife From [your town] Loses 47 Pounds!!

Geo Targeting is the method of determining the location of a website visitor and delivering different content to that visitor based on that location. Today I saw an ad the headline of which was “Housewife From [location of my ISP] Loses 47 Pounds Drinking Acai Berry Juice!” and the copy of which referred to ‘Jane Doe From [my location] . . ‘ If Jane Doe doesn’t live in my town, then that is a literally false statement. 43(a)? Is it material? I don’t know, but why do they rig the ad this way?


99% True

WSJ: Kills 99.9% of Germs – Under Some Lab Conditions:

Everything from hand-sanitizing liquids to products like computer keyboards, shopping carts and tissues tout that they kill 99.9%, or 99.99%, of common bacteria and fungi.
But some of these numbers look like the test scores in a class with a very generous grading curve. They often don’t include all pesky germs, and are based on laboratory tests that don’t represent the imperfections of real-world use. Human subjects, or countertops, in labs are cleaned first, then covered on the surface with a target bug. That is a far cry from a typical kitchen or a pair of grimy hands.
Advertising near-total effectiveness is common; AT&T Wireless’s television ads touting its network coverage of 97% of the U.S. is just the latest example. But it is especially common for health products. Naturally, companies make the claims because they sell products.