Applying Lexmark, ED Pa. Holds 43(a)(1)(A) Claim May Be Brought Against Competitor But Not Competitor’s Customers

Plaintiff extracts spring water. One defendant allegedly extracts well water, which it misrepresents as spring water to other defendants, who are bottlers, and who also misrepresent the water as spring water.

Applying Lexmark, court holds that bottler defendants’ alleged false statements do not proximately injury plaintiff (as opposed to the false statements by extractor defendant,  a competitor of plaintiff, which statements could proximately injure plaintiff).

43(B)log discussion here.


False Advertising Suit by LegalForce Against Trademark Filing Firm TM411 Dismissed

Law firm LegalForce RAPC is the largest filer of trademarks in the U.S.. It has filed several lawsuits against document preparation services, generally premised on the allegation that these firms are engaged in the unlicensed practice of law.

In this action against document preparation service TM411, LegalForce’s false advertising claim was dismissed as it insufficiently plead facts that various statements on TM411’s website would mislead consumers. With the federal claim out, the Court dismissed the remaining state unfair competition claims as well.

43blog discussion here.


Text of Decision in D. Conn Motion to Dismiss re SPORTSPOD Trademark

Anthem Sports LLC v. Under the Weather, LLC, 17cv596 (D. Conn. March 6 2018)

Patent and trademark dispute relating to small tents for viewing outdoor sports. As 43(B)log points out, the judge used the term SPORTSPOD generically in the decision, which doesn’t bode well for the trademark claim.

Calling something a shoddy knockoff is an opinion and therefore not actionable under 43(a)(1)(B).

Falsely claiming to be the inventor of something is not actionable under 43(a)(1)(A) per Dastar.


What Mis-Use Of A Photo Might Be

Defendant allegedly ran photos of plaintiff models, to promote defendant’s resorts. Discussion of what tort this might be (false advertisement, unjust enrichment), and what it might not be (negligence per se).

Also, complaint was a few hundred pages too long.


A Haas Divided Will Not Stand

. . . or when the HAAS mark is the housemark. I can stop making horrible puns any time I want to. 43blog summary here.


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