11th Circuit affirms defense TM verdict; evidence of confusion is not evidence of harm for disgorgement

Florida Virtual School v. K12, Inc., 2026 WL 127063, No. 24-10449 (11^th Cir. Jan. 15, 2026)

A pretty good example of why granting registrations to highly descriptive (at best) terms is a bad idea! Also a good example of why not having a harm requirement in trademark infringement encourages this kind of litigation—although the lack of harm matters to remedies, it isn’t part of the main case, making litigation seem much more attractive.

Florida Virtual, a state-funded initiative, has federal registrations for “Florida Virtual School” and “FLVS” for educational services. K12, a for-profit competitor, initially launched with “Florida Virtual Academy” and “Florida Virtual Program.” Florida Virtual sued K12, which settled and adopted the name “Florida Cyber Charter Academy.” But Florida Virtual sued again when K12 launched a new program, “Florida Online School,” adding unfair competition, false advertising, and breach of contract claims. K12 counterclaimed for cancellation of Florida Virtual’s registrations for fraud against the USPTO. The trial court rejected all the claims (fraud on the PTO was barred by the settlement agreement despite some decent evidence of misrepresentation), and the court of appeals affirmed.

Of relevance to the breach of contract claims: K12 agreed to (1) pay Florida Virtual $600,000; (2) stop using the Florida Virtual Academy (FLVA) and Florida Virtual Program (FLVP) names and acronyms; (3) not use additional “Prohibited Marks”; and (4) transfer domain names containing the prohibited marks to Florida Virtual in 2016, until when it could use them to redirect to itself. The settlement agreement included a list of “Approved Marks” available to K12, but the parties agreed that there would “be no presumption against K12’s choice of a mark” not on that list.

As is not uncommon, nobody apparently followed up on the domain name transfer. If you have outside counsel do the litigation, you must have someone internal calendar issues like this for your team! Followup is where things are most likely to fall apart. This has been your practice pointer for the day! Thus, when Florida Virtual objected to K12’s Florida Online School (FLOS) in 2019, it also raised concerns with K12’s continued use of FLVA.com as a redirect to its other websites. K12 then transferred the FLVA.com domain to Florida Virtual and began the process of renaming its program “Digital Academy of Florida,” but Florida Virtual still sued.

False advertising: The false advertising claim was based on a checklist on K12’s website for “comparing K12 to other online learning solutions.” The checklist showed two columns, each listing several features of an online education program. “K12-Powered Schools” showed checked boxes next to each feature while “Other Online Learning Solutions” had an unchecked box next to each.

Florida Virtual’s survey expert concluded that the checklist misled around 18 percent of consumers into believing that Florida Virtual offered services that its competitors did not, but the district court concluded that the survey portrayed the checklist “out of context” and granted summary judgment on the false advertising claim because there was no other evidence of consumer deception.

The analysis here is weird; the court didn’t like that the survey didn’t show parents other virtual school options and ask them if they actually had the features at issue—but that’s falsity, which usually is established by evidence other than the survey. Still, the court reasoned, the checklist wasn’t literally false, because, although one reasonable reading of the checklist is that K12 provided “the checked services while other schools [did] not,” another reasonable reading was that K12 was “inviting consumers to do their own research and fill out the checklist—not stating that it possessed features the other providers definitely did not.” (The vagueness of the “other” category leads me to a similar ultimate conclusion—if such a comparison is even falsifiable, it doesn’t seem that Florida Virtual showed that all other online options in fact had the features in question. A better criticism would be that the survey didn't test the alternate meaning if it didn't give respondents the option to say "this is a checklist I can use" or something like that, along with "this means those other schools don't have those features.")

Even assuming falsity as to Florida Virtual—which did offer all the features—the survey “did not allow respondents to review the websites of K12’s competitors and assess whether they provided the same services as K12.” [Again, this is about falsity, not misleadingness.] Thus, the survey was unreliable for assessing a “marketing tool” whose stated purpose was to allow users to “weigh [their] options” when comparing K12 to other providers.

Trademark infringement: The district court excluded the lost-profits testimony of Florida Virtual’s damages expert, who wrongly/without foundation assumed that every Florida Online School student would have enrolled in Florida Virtual School absent the alleged infringement. With this lost-profits testimony excluded, there was no evidence of actual damages.

Florida Virtual sought disgorgement of not only K12’s profits related to Florida Online School, but also the profits from its other programs because the continued use of FLVA.com as a redirect to these programs’ websites was allegedly an independent act of trademark infringement. The district court disagreed and struck testimony unrelated to Florida Online School; Florida Virtual had not “based its trademark infringement arguments on [K12’s] use of the FLVA.com domain,” and the claim was released by the settlement agreement.

The court of appeals affirmed the rejection of Florida Virtual’s actual damages remedy. The only evidence Florida Virtual had of damage did not show that confusion caused the damage. First, a parent testified that she wanted to enroll her daughter in Florida Virtual School in 2020, but accidentally enrolled her in Florida Online School instead. But she realized her mistake and withdrew her daughter before classes began, then attempted to enroll her daughter with Florida Virtual, but ultimately “decided to go back to brick-and-mortar at the end of the day” (at the point that Covid shutdowns in Florida had ended). This was not a lost customer.

Second, there was other arguable evidence of confusion among students, parents, and school officials. “But there is a difference between general confusion and actual damages, and Florida Virtual did not bridge that gap.” The court highlighted some examples (most of which arguably just show that the purported mark is near-generic or generic):

A social worker contacted Florida Virtual for a Florida Online School student’s enrollment records after the student’s father said he had “been enrolled in FLOS (Florida Online School) which is a part of FLVS.”

A sixth grade Florida Online School student told his teacher in an email that he was “just starting Florida Virtual School.”

A parent emailed her son’s Florida Online School teacher to withdraw him “from Florida virtual school.”

In an email to a Florida Online School teacher, a parent said, “I am new to the Florida virtual school.”

A parent contacted both Florida Virtual and Florida Online School employees to ask about the status of her daughter’s enrollment in Florida Online School.

Even viewed in the light most favorable to Florida Virtual, “these examples demonstrate confusion—but that’s all. They do not show that the confusion diverted students from Florida Virtual to K12, or otherwise injured Florida Virtual.” And the damages calculation was no help because the expert assumed that Florida Virtual would have obtained all of K12’s registrations absent the allegedly unlawful conduct. “That conclusion was not an abuse of discretion.”

But, because there’s no harm requirement, that didn’t end the case, just kept it a bench trial.

There was no error in finding Florida Virtual’s marks weak. FV conceded descriptiveness, but the 11^th Circuit presumes relative strength from incontestable registrations (boo). Still, that presumption can be rebutted by showing commercial weakness, which K12 did. Florida Virtual’s director of marketing testified that it had changed its logo six times since 1997 and acknowledged that changing a logo “can dilute a brand.” And its senior director of marketing and communications “discussed a nearly $5 million effort to rebrand [Florida Virtual’s] global operations as recently as 2020.” 

“In a 2018 survey, only 30 percent of parents with school-aged children recognized Florida Virtual’s brand—even when prompted. And in a 2020 survey, just 1 percent of respondents named Florida Virtual as an online education provider without prompting.” There was other survey evidence showing 50% prompted recognition, but that wasn’t much more than K12’s. There was also evidence of third-party use of “Virtual School” modified by the names of various Florida school districts; though FV argued that the geographic designation removed any confusing similarity, the district court could reasonably take a different view.

On similarity, the word marks were “nearly identical,” but Florida Virtual “operates in a crowded field of similar marks on similar goods or services,” where “slight differences in names may be meaningful,” and the design marks looked “nothing alike.” There was no error in finding similarity to be neutral.

Customer overlap: the court found this factor neutral because Florida Online School’s only customer was Hendry County School District, not “individual parents and students.” Florida Virtual argued that it “also partners with school districts,” so its customers are similar either way, and Florida Online School still “catered to the same general kinds of individuals,” which was all that was required. “[W]ere we reviewing de novo, we might agree that this factor weighs in Florida Virtual’s favor. But we are not—and it was not clear error for the court to determine that this factor was neutral.” K12 presented evidence at trial that the Hendry County School District was the only one purchasing services from Florida Online School, meaning there was no overlap. Anyway, “error in its analysis of one of the subsidiary factors” is “not enough to allow us to overturn” the trial court’s decision.

Similarity of advertising: Both parties “use[d] digital media to reach their customers and facilitate services,” but they targeted different audiences: K12 “primarily market[ed] to school districts,” while Florida Virtual advertised directly to students and parents. This minimized the overlap.

Intent: “While there was some evidence—like K12’s continued use of FLVA.com—that could suggest intent to infringe, other evidence supported the court’s finding,” including the name changes when challenged.

Actual confusion: “Short-lived confusion or confusion of individuals casually acquainted with a business is worthy of little weight, while confusion of actual customers of a business is worthy of substantial weight.” Reasonable minds could disagree whether it was the marks that caused any confusion reported, and thus the trial court did not clearly err.

For example, the parent mentioned above testified that she believed the two programs to be “one in [sic] the same,” because she “thought there was only one” online education provider in Florida. Because of that belief, she “didn’t feel the need to research” her options “in depth.” “[I]t was reasonable for the court to conclude that the source of her confusion was her mistaken belief that there was only one provider, not the similarity of K12’s marks. After all, if [the parent] was convinced there was only one online provider, it would not make a difference to her whether the program she signed up for was called Florida Virtual School, Florida Online School, or something completely different, like Digital Academy of Florida.” The story was similar with the other purportedly confused parent, who the district court found was confused about the flexibility of the schedule offered, not the name of the school. “[S]he testified that she did not care which program her son went to, so long as it had a flexible schedule.”

It’s nice to see some focus on causation here! The court compared the situation to one in which a skier believes that only one airline, Delta Air Lines, offers a flight from Atlanta to Salt Lake City; she books the first flight that comes up in her search, which happens to be on American. “Did she book with American instead of Delta because their names were too similar? Of course not—it’s because she thought there was only one option.” (Cf. Conopco, Inc. v. May Dept. Stores Co., 46 F.3d 1556 (Fed. Cir. 1994) (rejecting similar evidence of actual confusion where consumer testified that she believed that national brands made the products used in house-branded alternatives).

Florida Virtual also argued that it was error for the court to discount evidence demonstrating actual confusion: twenty-one emails from employees, parents, students, and others. But it was not clear error for the district court to find that the emails were not reliable evidence of confusion, but rather of “the fact that online educational service providers exist in a muddled marketplace replete with generically and descriptively named participants.” It was also not clear error to point out that, without survey evidence, there was “no way to filter out latent marketplace confusion that the parties agree exists in the online education market.”

Consumer sophistication: The trial court found that Florida Virtual’s customers were sophisticated given “the nature and importance of a parent’s choice of where to educate their child.” This is, of course, a normative statement, not an empirical one, as the parents above demonstrated. Students looking for a college are “relatively sophisticated consumers” because of “the nature, importance, and size of the investment in a college education.” It was not clear error to apply that logic to schools where “parents, not students, are the ones making that decision. Plus, the evidence showed that some of Florida Virtual’s customers were school districts and administrators, and we would expect them to have a developed understanding of their online education options.”

CFP: Yale/Harvard/Stanford Junior Faculty Forum, May 21-22

 Please share widely! 

Request for Submissions

Harvard/Stanford/Yale Junior Faculty Forum

May 21-22, Yale Law School

 Harvard, Stanford, and Yale Law Schools are soliciting submissions for the 2026 Harvard/Stanford/Yale Junior Faculty Forum, to be held at Yale Law School on May 21-22, 2026. Ten to fifteen junior scholars (with one to seven years of teaching experience) will be chosen, through a double-blind selection process, to present their work at the Forum. A jury of accomplished scholars will choose the papers to be presented. A senior scholar will comment on each paper. The audience will include the participating junior faculty, senior faculty from the host institutions, and any invited guests. There is no publication commitment. Yale Law School will pay presenters’ travel expenses, though international flights may be only partially reimbursed. 

The goal of the Forum is to promote in-depth discussion about particular papers and more general reflections on broader methodological issues, as well as to foster a stronger sense of community among American legal scholars, particularly by strengthening ties between new and veteran professors. 

TOPICS: Each year, the Forum invites submissions on selected topics in public and private law, legal theory, and law and humanities topics, alternating loosely between public law and humanities subjects in one year, and private law and dispute resolution in the next. For the upcoming 2026 meeting, the topics will cover these areas of the law:

Antitrust

Bankruptcy

Civil Litigation and Dispute Resolution

Contracts and Commercial Law

Corporate and Securities Law

Intellectual Property

Private Law Theory and Comparative Private Law

Property, Estates, and Unjust Enrichment

Taxation

Torts 

QUALIFICATIONS: Authors who teach law in the U.S. in a tenured or tenure-track position and have not been teaching at either of those ranks for a total of more than seven years are eligible to submit their work. American citizens or permanent residents teaching abroad are also eligible, provided that they have held a faculty position or the equivalent, including positions comparable to junior faculty positions in research institutions, for not more than seven years, and that they earned their last degree after 2016. Authors must be qualified as of the date of submission. We accept jointly authored submissions, but each of the coauthors must meet the qualification requirements. Papers that will be published prior to the Forum are not eligible. There is no limit on the number of submissions by any individual author. Faculty from Harvard, Stanford, and Yale Law Schools are not eligible.

 

PAPER SUBMISSION PROCEDURE: Please use the following form to submit: https://docs.google.com/forms/d/e/1FAIpQLSeE-Y1decyDrkmejVoztM2oPI3MrLfxdP3kCT500H1TwUBiMg/viewform?usp=header. The deadline for submissions is February 20, 2026. Remove all references to the author(s) in the paper. The form will ask for the title of your paper; under which topic your paper falls; an affirmation that your paper satisfies the non-publication qualification above; and the year in which you began teaching in one of the qualifying positions above. Each paper may only be considered under one topic. Any inquiries about the form should be directed to Christine Jolls. 

FURTHER INFORMATION: General inquiries concerning the Forum should be sent to Christine Jolls ([email protected]) at Yale Law School, Norman Spaulding ([email protected]) at Stanford Law School, or Rebecca Tushnet ([email protected]) at Harvard Law School.

Christine Jolls

Norman Spaulding

Rebecca Tushnet

 

court rejects TM owner's attempt to require full chain of custody for first sale defense, but where is the burden of proof?

ZAGG Inc. v. Ichilevici, 2026 WL 63142, No. 23-cv-20304-ALTMAN/Reid (S.D. Fla. Jan. 8, 2026)

ZAGG sells a variety of screen protectors, power management solutions, mobile keyboards, cases, and personal audio products, including my beloved Mophie. Defendant DVG resells products, including ZAGG products, through Amazon. ZAGG sued DVG for false advertising and trademark infringement; DVG counterclaimed for false advertising/unfair competition/defamation. Here, the court rejects the parties’ cross motions for summary judgment on trademark and also leaves for the jury the related question of whether DVG’s listing of its ZAGG products as “new” was false advertising, while dismissing the rest of the counterclaims.

DVG bought its ZAGG products in a liquidation pallet from a wholesaler. ZAGG argued that DVG’s advertisements are false because “Amazon’s guidelines require a product listed for sale as in ‘New’ condition to be ‘brand new’ and [ ] covered by a manufacturer’s warranty.”

Both parties produced Amazon pages supporting their views: it seems that Amazon’s buyer-facing “Condition Guidelines” define “New” as: “Just like it sounds. A brand-new item. Original manufacturer’s warranty, if any, still applies, with warranty details included in the listing comments. Original packaging is present for most New items but certain items like shoes may be re-boxed.” However, the Amazon FBA Guidelines and Seller Central, in defendants’ telling, “simply require that the item is brand-new and unused, free of blemishes, smudges or dirt, and in the original packaging,” and defendants submitted an expert report in support of this view.

Past cases haven’t involved listings where a seller, like DVG here, notifies purchasers that “it is not an authorized reseller” of ZAGG products and urges them to “check with the manufacturer to see if a warranty may apply.” Thus, there was a disputed question of material fact on literal falsity.

The court also sent the “liquidation” theory of falsity to the jury, though I’m not sure it should have under its own standards, given that ZAGG had the burden of proof here. The “thrust” of ZAGG’s argument was that, because DVG couldn’t “verify the full chain of custody or history of each individual item,” it couldn’t confirm that was actually selling “brand new” items.  Sure sounds like lack of substantiation to me.

Later, the court found that ZAGG submitted enough to get to the jury on injury: “diversion of sales to a direct competitor [is] the paradigmatic direct injury from false advertising.” “There’s no question that ZAGG and DVG are direct competitors and that they sell the exact same products.”

Trademark infringement: Again, ZAGG argued that defendants had the burden of proving a complete chain of custody, back to sale by ZAGG, before they could raise a first sale defense. (So much for selling your used stuff!) The court’s research did not find any cases imposing this trace-to-manufacturer requirement. DVG disclosed the identity of its supplier and produced documents and testimony about that supplier’s sales to DVG. The circumstances weren’t suspicious, as in another case where defendant claimed to have “found [products] in storage units he acquired,” and the plaintiff submitted “proof that the products [the defendant sold] were returned product not to be resold.”

There was no record evidence behind ZAGG’s speculation that DVG was selling counterfeit or damaged goods; it conceded that all the products it bought in test buys were genuine. DVG also attested (under oath) that all the ZAGG products it buys are “independently sorted and graded in accordance with Amazon’s condition guidelines before sending them to Amazon’s warehouses” and that “[m]any of the products come in their original case packs from the factory.”

“So, while DVG may not know where its supplier gets its ZAGG inventory, that break in the custodial chain isn’t sufficient, standing alone and at summary judgment, to render the first-sale doctrine inapplicable as a matter of law. We’ll therefore permit DVG to assert its first-sale defense at trial.” Still to come: who has the ultimate burden of proof here? I would think it would have to be ZAGG, even if first sale is labeled a "defense" for convenience: The burden is still on ZAGG to show that defendants sold infringing products, and, just as the defense "this mark isn't confusing because it's different enough" would not shift the burden of proof to defendants, "this mark isn't confusing because it's a legitimate good from the TM owner" seems like it shouldn't do so either. 

There were also disputed issues on the “material difference” exception to the first-sale doctrine. “A material difference is one that consumers consider relevant to a decision about whether to purchase a product. Because a myriad of considerations may influence consumer preferences, the threshold of materiality must be kept low to include even subtle differences between products.” ZAGG argued that some of the products have been “opened, repackaged, restickered, or damaged,” and DVG’s products don’t “carry the manufacturer’s warranty.” DVG argued that it “meets or exceeds” the terms of ZAGG’s warranty because it offers to replace customers’ defective items without charging them a $10 shipping fee. This was a jury question, including on DVG’s expert testimony that any damage to the products’ packaging likely occurred in transit.

DVG’s defamation counterclaim based on ZAGG’s trademark reports to Amazon was dismissed because it didn’t show falsity or negligence. One claim that a test buy product had been “altered” and three that the product was “wrong” were not shown to be false: the first had been opened and the packaging seal removed, and the other three had different SKUs than listed. DVG didn’t meet its burden of showing that the different SKUs didn’t matter.

Temu's "cheaper and way better quality than Shein" claims were potentially falsifiable, not puffery

Roadget Business PTE. Ltd. v. PDD Holdings Inc., 2026 WL 44864, No. 24-2402 (TJK) (D.D.C. Jan. 7, 2026)

Plaintiff, aka Shein, sells low-priced fashion and lifestyle products through a website and mobile application. Defendant runs a competing, discount-driven online platform—Temu. “Each platform has accused the other of engaging in unlawful, multifaceted campaigns to interfere with the other’s competitive posture.” This is Shein’s countersuit alleging trade secret theft, intellectual property right infringement, false advertising, and other unlawful acts. The court allowed trade secret claims and false advertising claims, but dismissed product disparagement or trademark dilution claims (Temu didn’t move to dismiss all of Shein’s claims).

In May 2022, Shein’s mobile app allegedly was the most downloaded app in the United States, and as of the filing of the complaint, Shein had over 33 million followers on Instagram and nearly 10 million followers on TikTok. Shein says it is “one of the most popular” online fashion and “lifestyle brands” worldwide.

Shein alleged that its success stemmed from its data-driven trade secrets about anticipating demand. Shein allegedly owned copyrights in both its photographs and its designs. Shein owns several trademark registrations for the SHEIN brand and its affiliate brands, and consumers allegedly associate all these brands with “the sale of high-quality fashion and home goods at a fair price.”

Temu, by contrast, functions as an “online marketplace” where independent third-party sellers sell their own goods. Temu allegedly stole Shein’s Best Seller Data; used or “instructed” its sellers to use copyrighted images of Shein products as promotional images on the Temu website and app; refused to let sellers “discontinue the sale of infringing products” on Temu, even when sellers request such removal; used the SHEIN trademark (or close variations, like “She/in”) in online ads, including sponsored ads on Google, which suggest that “authentic” Shein merchandise is sold on Temu, but when consumers click on the ads, they are directed to Temu’s website, which offers no SHEIN-branded products for sale; created “fake” accounts that use the SHEIN mark—for instance, by using the handle @SHEIN_USA—to “promote its own website” and to “trick consumers” into downloading its mobile app; and instructing paid influencers to “disparage” Shein’s products. E.g., one influencer (with over 137,000 followers) allegedly posted a series of pictures of herself wearing different Temu apparel with the caption, “Shein Alternatives, cheaper but way better quality! Check Temu.com out! So freakin cute and so freakin cheap!”  

Product disparagement: The court applied Massachusetts law as alleged by Shein. In Massachusetts, a plaintiff bringing a product disparagement claim must plausibly allege that the defendant “(1) published a false statement to a person other than the plaintiff; (2) ‘of and concerning’ the plaintiff’s products or services; (3) with knowledge of the statement’s falsity or with reckless disregard of its truth or falsity; (4) where pecuniary harm to the plaintiff’s interest was intended or foreseeable; and (5) such publication resulted in special damages in the form of pecuniary loss.” As is common with respect to mass advertising claims, Shein failed on (5).

Special damages are “essential” to a product-disparagement claim, and must be pled with specificity. They “limit[ ] a plaintiff’s recovery to the ‘pecuniary loss that results directly or immediately from the effect of the conduct of third persons’ acting in response to the alleged disparagement.’ ” If a statement was so “widely disseminated” that it is impossible to identify specific customers who chose not to buy the plaintiff’s products, then the plaintiff may show “that the loss of the market has in fact occurred and that no other factor caused that loss.” A plaintiff asserting that theory must at least allege “facts showing an established business and the amount of sales before and after the disparaging publication, along with [facts supporting] causation.”

The only, conclusory allegation about attendant damages is that Shein was “harmed by the dissemination of the Influencer Statements because they caused consumers to believe that SHEIN-branded products were inferior in quality to products sold by Temu when this is untrue.” Shein didn’t even allege that it lost any sales, let alone that any such hypothetical losses were solely attributable to influencer statements.

Dilution: Shein failed to allege fame. The very “nature of a dilution claim itself makes it difficult to state claim to relief that is plausible on its face.” Its allegations were conclusory, and worsened by the fact that it apparently tried to claim fame for its other “affiliate” marks, including SHEIN CURVE, DAZY, SHEGLAM, ROMWE, and LUVLETTE. It’s not acceptable to lump marks together like that.

Shein alleged that it “has invested significant time, effort, and money promoting, advertising, and marketing its business operations across multiple channels,” and that the “SHEIN brand also enjoys a significant presence on social media.” These allegations were “without more, conclusions, which are not a proper factual basis for a finding of fame.” Shein didn’t allege “how or since when it promoted its marks, or even how much money it invested in any such marketing.”

Shein’s complaint likewise offered no details whatsoever on the “amount, volume and geographic extent of sales” of any products offered under the SHEIN brand, let alone any of its affiliate brands. On “actual recognition of the mark,” a plaintiff cannot “simply allege” that “it has attained widespread and favorable recognition.” That Shein—as a “brand” or marketplace—allegedly enjoys a large social-media presence with “million[s]” of “followers,” says little about consumer recognition of the “trademarks ... in suit.” The Lanham Act protects “the mark,” not “the designer” or “the brand itself.”

“Shein’s alleged popularity on social media also says little about consumer recognition among the general population.” “Many brands are advertised” on social media and have a significant following there, but “not all are famous.” As for its registrations, “[o]ne cannot logically infer fame from the fact that a mark is one of the millions on the Federal Register.”

“[S]tating legal conclusions and reciting relevant factors is insufficient no matter the pleading standard. But especially so when a claim is inherently ‘difficult’ to establish because Congress prescribed a ‘purposely rigorous’ element—in this case, fame.” Shein’s alleged global revenue and growing customer base, or the number of downloads of its “shopping app,” “do not speak to the alleged fame of the SHEIN or any other mark.”

False advertising: Shein did better here, though the “influencer guidelines” were a “close call.”

First, were the accused statements “commercial advertising or promotion” or merely “[p]rivate communications with business partners.” True, providing guidelines to non-customers, without more, wouldn’t be false advertising. But Temu alleged more: that Shein “provided influencers with guidelines” that “require[d] them to make ... false” statements on social media, which were then made; these should, Temu alleged, count as Shein’s statements.

And social-media posts by paid influencers undisputedly qualified as commercial advertising under the Lanham Act. Thus, a plaintiff can state a false advertising claim by alleging that “the defendant itself, or through its paid agents, made false statements in commercial advertisements.” Shein plausibly alleged its agency theory of liability.

Temu’s puffery argument was a closer call, but the statements couldn’t be deemed puffery as a matter of law. (Not every court would agree, though I’m sympathetic.)

Temu’s Influencer Guidelines allegedly “instruct” influencers to include, among others, the following statements in their “Instagram Caption”: “Shein is not the only cheap option for clothing! Check Temu.com out, cheaper and way better quality!” and “Looking for clothes better than Shein but cheaper than revolve? Check Temu.com out.” And Shein gave examples of posts that used these/nearly these captions.

Claims that Temu’s clothes are “cheaper” but “way better quality” than Shein’s were actionable because they made “specific” claims that can “be[ ] proved false” or can “reasonably be interpreted as ... statement[s] of objective fact.” “Cheaper” was undoubtedly “objectively verifiable.” While statements like “better” generally “amount[ ] to little more than an exaggerated opinion of superiority that no consumer would be justified in relying on,” saying that a “product can do something ‘more efficiently,’ ‘easier,’ ‘quicker,’ or ‘safer’ is more specific.” This is especially true when a statement “make[s]” an “explicit comparison” to “other brands” about “particular characteristics that would be important to a consumer.” A reasonable consumer could “believe” that the advertising party actually “test[ed]” and compared competing products and “deduced” that one was “superior in these ways.”

“Here, a reasonable consumer could think just that.” Quality is a specific enough characteristic for clothes, and it’s material, “particularly in the fast-fashion context, where buyers know that low prices (a key selling point) can come at the cost of quality.” Indeed, the fast-fashion context itself renders the statement less “vague” and “unmeasurable,” “because there are only so many ways in which one company’s clothing article can be of ‘better quality’ than another’s.” Also, the “way better quality” claim appeared next to the verifiable claim that Temu’s clothes are “cheaper” than Shein’s, and was made by an “influencer” (depicting herself wearing Temu’s clothes) “whom consumers perceive as having personal experience with—i.e., as having ‘tested’—the products they promote.” How other courts treat a “a specific word is of little help unless that word is used in a sufficiently similar context,” and most of the cases cited by Temu involved general claims of superiority—e.g., “better customer service” and “better coverage,” or “better data network”—with no reference to specific features or specific competitor products.

Although a news article appended to the complaint stated that “Temu’s prices” for clothing “are usually ... 20-30% lower than on SHEIN,” that didn’t show that Temu’s prices are always cheaper than Shein’s—which Temu would need to show to establish that the alleged influencer statements, portraying particular products, are true.

For similar reasons, Shein stated a claim for contributory false advertising, which is available under the Lanham Act, since it’s available for trademark and 43(a) has the same introductory language applied to both causes of action.  “[C]ontributory liability is a common law theory of derivative liability that requires no express statutory basis.”

Dueling genealogists: photo (c) claims allowed, but not Lanham Act or factual compilation claims

Hein v. Mai, 2026 WL 44798, No. 24-01126-JWB (D. Kan. Jan. 7, 2026)

Some interesting stuff going on in the genealogy world!

The Volga German people are individuals of German origin who moved to the Volga region of Russia in the eighteenth century. … There is a sizable Volga German diaspora in the American Midwest. Plaintiff Margreatha Hein and Defendant Dr. Brent Mai are both genealogy researchers on the Volga German people. Their research is the subject of this lawsuit.

Hein operates volgagermans.org, where she publishes her research. Mai is the Dean of Libraries at Wichita State University, has held similar positions with other universities, and operates volgagermaninstitute.org, where he publishes his research.

Hein first objected to Mai’s copying in 2020; in 2023, she registered the copyright in eight photos she took in Europe that were republished on Mai’s website as early as 2017. (This removes her eligibility for statutory damages.) She also registered ten “textual compilations” and alleged that Mai copied 107 textual compilations from her website: paragraph form summaries of genealogical information, organized by last name.

The parties focused on a particular example, which plaintiff’s expert contended was representative; as plaintiff has the burden of proof of infringement, the court extended its finding of noninfringement to the other, unargued examples; plaintiff didn’t provide “any additional examples that vary in a significant way.”

Hein registered this text:

Johann Jacob Hessler (son of Johann Jacob Hessler of Niedergründau) was baptized on 15 December 1718. Anna Maria Meininger (daughter of Johannes Meininger of Mittelgründau) was baptized on 2 December 1725. Johann Jacob and Anna Maria married in Rothenbergen on 26 August 1745.

Baptisms were recorded for the following children, all born in Rothenbergen: Johann Conrad, born 5 February and baptized 12 February 1747 (died 30 April 1754); twin daughters born 28 May and baptized 29 May 1751, Anna Margaretha (died 16 May 1754) and Christina; Anna Margaretha born 22 May and baptized 25 May 1755; Elisabetha, born 24 January and baptized 26 January 1760 (died 27 Jan 1760); and twin sons born 5 February and baptized 7 Feb 1762, Valentin (died 5 Mar 1764) and Friedrich.

Jacob Hessler died on 8 Nov 1762. On 5 Jan 1764, Anna Maria Hessler (widow of Jacob Hessler) married Hartmann Ifland (son of Johannes Ifland from Lützelhausen) in Rothenbergen. They had a daughter Catharina, born 2 January and baptized 8 January 1765.

Hartmann, Anna Maria, and three of the Hessler children (Christina, Anna Margaretha, and Friedrich) arrived in Russia on 9 August 1766. Hartmann apparently died during the journey to the villages.

Mai admittedly copied; he listed Hein as a contributor or researcher. The parties’ research is “freely accessible to the public and neither party receives any income directly from the disputed material on their website.” Mai, however, on occasion receives income from leading tours of the Volga region or translating certain documents. Hein has stated she has no interest in similar business.

The court first allowed Dr. Kenneth Crews to testify as a copyright expert, but only about issues of fact (the process of getting a registration and possibly some facts related to fair use, though it’s harder to see how that would work), not ultimate legal issues.

Mai challenged Hein’s standing since she doesn’t seek to generate revenue, but she adequately alleged copyright infringement—which has a sufficient common law analogue—and reputational harm for the Lanham Act by listing her as a researcher/contributor and allegedly including inaccurate information.

Copyright limitations period: contested issue of facts precluded summary judgment for Mai given the discovery rule and the possibility that Mai engaged in new publications when he moved institutions/changed domain names. The court accepted Hein’s argument that she didn’t discover the “full scope” of the infringement until 2023 as sufficient to avoid summary judgment, though I’m not sure how persuasive that is given the 2020 objections.

Copyright in the form compilations of historical genealogical information: This claim failed because Mai did not copy anything copyrightable. The court’s north star was the Supreme Court’s admonition that “the selection and arrangement of facts cannot be so mechanical or routine as to require no creativity whatsoever.” Still, there might be a valid copyright in Hein’s compilations. But even with a triable issue on that, infringement claims failed.

Stripping each entry of uncopyrightable facts/asserted facts, what remained was a mechanical “skeleton.” An abstraction-filtration-comparison approach was useful here given the thinness of the copyright. The sample Hessler text was “composed almost entirely of facts (names, dates, and locations) that are not subject to copyright protection.” Without the facts, here was the selection/coordination/arrangement:

_____________ (son of _____________of _____________) was baptized on _____________. _____________ (daughter of _____________ of _____________) was baptized on _____________. _____________and _____________married in _____________on _____________. … etc.

Mai’s version:

Johann Jacob Hessler, son of Johann Jacob Hessler of Niedergründau, was baptized on 15 December 1718. Anna Maria Meininger, daughter of Johannes Meininger of Mittelgründau, was baptized on 2 December 1725, Johann Jacob and Anna Maria were married Rothenbergen on 26, August 1745.

The Gründau parish register records the baptisms of the following children of Johann Jacob & Anna Maria Hessler, each born in Rothenbergen: (1) Johann Conrad, born 5 February 1747, baptized 12 February 1747, died 30 April 1754; (2 & 3) twins Anna Margaretha (who died 16 May 1754) & Christina, born 28 May 1751, baptized 29 May 1751; (4) Anna Margaretha, born 22 May 1755, baptized 25 May 1755; (5) Elisabetha, born 24 January 1760, baptized 26 January 1760, died 27 January 1760; and (6 & 7) twins Valentin (who died 5 March 1764) & Friedrich, born 5 February 1762, baptized 7 February 1762.

Johann Jacob Hessler died 8 November 1762, and his widow remarried on 5 January 1764 to Hartmann Ifland. They had a daughter Catharina, born 2 January 1765 and baptized 8 January 1765.

The Ifland family, along with 3 of the Hessler children, arrived from Lübeck at the port of Oranienbaum on 9 August 1766 aboard the pink Slon under the command of Lieutenant Sergey Panov.

“While Mai’s reproduction certainly contains the same basic information as Ms. Hein’s skeleton above, it can hardly be said to be a copy of copyrightable content. Basic sentences, which at least in this example Mai does not copy verbatim, and words like ‘baptism’ or ‘born’ which appear throughout, do not possess the ‘creative spark’ required to demonstrate copyright protection.”

What about the “mode of presentation”? “Because Ms. Hein chooses the humble paragraph format to present her information, she argues that Dr. Mai should not have been able to do so. But this argument proves too much. Copyright law cannot grant the first researcher who discovered and published a compilation of facts with little additional synthesis a monopoly over the mode of presentation of that information.” All the other examples Hein submitted were substantially similar; summary judgment for Mai was appropriate.

That left the photos, as to which the court denied Mai’s motion for summary judgment on fair use. (This is also framed as a finding of no fair use, but it seems like it’s still available for trial.)

Purpose and character: Mai “primarily” argued noncommerciality, not transformativeness, which probably makes sense.  “While the court agrees that Dr. Mai’s use is on its face non-commercial, there is at least a question of fact as to whether the photographs contribute to Dr. Mai’s other sources of income, such as his tours or translations.”

Nature of the work: photos are creative. (Sigh; no mention of publication status or free availability elsewhere, though that shouldn’t necessarily outweigh creativity—but not all photos are the same!)

Amount and substantiality: eight whole photos.

Market value: Because Hein has no interest in monetization of the website or through tours and translations, “there can be no effect on the market.” However, “the fair market value could at some future date be affected should Ms. Hein ever decide to monetize her work.” Summary judgment denied. Mai’s pyrrhic victory on factor four is probably matched by Hein’s overall pyrrhic victory, given that statutory damages and attorneys’ fees are unavailable.

Lanham Act/state law unfair competition claims: Hein argued that the use of her name, with the title “researcher” or “contributor” placed next to it, diminished her stature in her research field and falsely indicated she has a professional association with Mai. Mai argued that Hein wrongly tried to create a “required citation format” through federal law, highlighting “apparently conflicting complaints that Dr. Mai does not give Ms. Hein credit but also diminishes her when he cites her.” (This is Dastar’s concern, too.)

The court didn’t have to reach the issue because it found that the Lanham Act and state law claims didn’t cover noncommercial uses. “The court’s survey of Lanham Act case law confirms a commerciality requirement.” (Citing Lexmark and its progeny—this requires the plaintiff to suffer a commercial injury and is different from requiring the defendant to be commercial.)

Although Hein alleged that the use of her name enabled Mai to receive income from selling tours and translations on a different page of his website, that wasn’t enough; it was simply “too attenuated,” given that Mai’s website was “overwhelmingly noncommercial in nature,” despite its link to another website with information about his tours. Even more attenuated were other alleged commercial connections:  Mai’s “paying for a URL and copyright registrations, having a bank account, and spending substantial sums on hard copy research materials, subscription websites, technical support for a website, and travel for research and to attend conferences.” Thus, Mai wasn’t using Hein’s name “in commerce.”   

false advertising's injury requirement causes reverse passing off claim to fail

Kesters Merchandising Display International, Inc. v. SurfaceQuest, Inc., --- F.4th ----, 2026 WL 35198, No. 24-3112 (10th Cir. Jan. 6, 2026)

SurfaceQuest allegedly marketed its products with photographs of its competitor Kesters’ competing product. Kesters sells “a lightweight, seamless material used in architectural products” called MicroLite, while SurfaceQuest mainly sells “architectural film that goes on surfaces like MicroLite.” Indeed, around 2014, the parties jointly marketed MicroLite samples wrapped in SurfaceQuest film. In connection with that, Kesters supplied SurfaceQuest with products, specification guides, and photographs of Kesters’ products. SurfaceQuest then applied its film to the products.

However, two years later, “SurfaceQuest decided to sell and market its own lightweight beam wrapped in SurfaceQuest film. These marketing efforts included advertisements using photographs of MicroLite.” Kesters alleged that SurfaceQuest “published a video characterizing MicroLite as SurfaceQuest’s product,” “published images from a grocery store renovation and misrepresented them as depicting SurfaceQuest products,” “placed a SurfaceQuest sticker on a MicroLite binder and falsely represented to a Kesters customer that SurfaceQuest had manufactured MicroLite,” “put a SurfaceQuest sticker on a MicroLite sample and falsely told Kesters customers that SurfaceQuest had invented MicroLite,” and “allowed a SurfaceQuest dealer to advertise with an image of MicroLite.”

Kesters lost its Lanham Act claim because “injury isn’t presumed and the plaintiff has not presented evidence of an actual injury.”

Kesters had the burden of showing injury: either a direct diversion of sales or a loss of goodwill. The court of appeals reasoned that a presumption of injury exists when the plaintiff proves material falsity and the “plaintiff and defendant are the only two significant participants in a market or submarket.” But, even presuming literal falsity, Kesters failed to create a genuine dispute of material fact regarding the presence of a limited market.

“[A] market is sparsely populated only when the other participants are insignificant. Otherwise, the court can’t assume that the plaintiff’s lost sales would go to the defendant.”  SurfaceQuest showed the existence of multiple competitors. Kesters had a competing affidavit, but it only offered it in support of its own summary judgment motion, not in opposition to SurfaceQuest’s summary judgment motion, and it only offered the affidavit too late—in a reply brief.

Dipping its toes into antitrust reasoning (always a dangerous move), the court of appeals reasoned that even considering the affidavit wouldn’t have helped. “To determine the scope of the market, we examine ‘cross-elasticity of demand,’ which measures the substitutability of products.” The affidavit didn’t address cross-elasticity of demand, only similarities between the products made by Kesters and SurfaceQuest. “But these similarities didn’t necessarily affect the ability to substitute products,” and “a single market may include companies making dissimilar products.”

Evidence of actual injury was also insufficient. Kesters argued that it lost a bid for work on a grocery store’s health markets, but there was no evidence that SurfaceQuest obtained those projects or that the store had seen SurfaceQuest’s marketing materials, whether directly from SurfaceQuest or otherwise. Thus, the district court couldn’t reasonably infer a causal connection between SurfaceQuest’s false advertising and Kesters’ loss of the bid.

laches, once established, bars Lanham Act claims even during more recent periods

Design Gaps, Inc. v. Distinctive Design & Construction LLC, --- F.4th ----, 2025 WL 3492373, No. 24-1860 (Dec. 5, 2025)

Super complicated facts; I’ll try to focus on the Lanham Act laches part because of that. “[A]fter a squabble developed over a cabinet and closet job for a luxury home in Charleston, South Carolina, the parties went to arbitration. The arbitration turned out well for the homeowners and the general contractor overseeing the home renovations but badly for the cabinet maker.” The cabinet maker nonetheless sued in federal court, including suing people that the arbitrator had held could not be brought into the arbitration because they weren’t bound by the agreement. The court of appeals nonetheless found that, because the disallowed parties were in privity with entities validly in the arbitration, res judicata and collateral estoppel precluded any claims against them based on the job.

Design Gaps “designs and installs cabinetry in luxury homes,” and frequently worked with defendant Shelter, “a general contractor engaged in homebuilding and renovation.” They had disputes during their years of working together. “For example, Design Gaps claimed from time to time that Shelter advertised Design Gaps’ cabinets without attributing the work to Design Gaps.” These claims were not covered by the arbitration, but they were still barred by laches.

The parties accepted that South Carolina’s three-year statutes of limitations for fraud and unfair trade practices supplied the analogous limitations period. Design Gaps filed its lawsuit on January 13, 2023, meaning that any alleged Lanham Act violations occurring before January 2020 presumptively were barred by laches.

Design Gaps argued that it did not have sufficient information concerning Shelter’s violations until arbitration commenced. But it sent a C&D in April 2018 about Shelter’s unattributed uses of Design Gaps’ work specifically referencing the Lanham Act in connection with its failure-to-attribute objections. While “mere knowledge that [a trademark owner] might have an infringement claim at some future date is not sufficient to trigger the period of unreasonable delay required for estoppel by laches,” the inquiry is objective. And the objective evidence was that “Design Gaps knew Shelter was using Design Gaps’ cabinet work in its promotional materials and that Shelter was not attributing that work to Design Gaps. Design Gaps had also stated in writing that it believed such conduct was false and misleading as to the origin of the cabinet work and that Design Gaps was being harmed. These facts are virtually identical to those alleged to support Design Gaps’ Lanham Act claims in this lawsuit.”

Would laches also cover continuing the same conduct during the presumptively not-lached period? Yes. Here, the core “claim” remained the same, so the continuing violation doctrine extended laches to the more recent period.

Design Gaps argued that its delay was excusable based on Citibank, N.A. v. Citibanc Group, Inc., 724 F.2d 1540 (11th Cir. 1984); there, Citibank should have known of the defendants’ use of its name “prior to 1960, but did not file suit until 1979.” “When [Citibank] first learned of defendants’ adoption of Citibanc as the name of its holding company in 1972, [Citibank] wrote letters warning that it regarded the use of” the name “as an infringement of [Citibank]’s rights.” But, unlike Citibank, Design Gaps did not “sen[d] several other letters over the next few years” before bringing suit. Moreover, in Citibank, the defendants did “not rel[y] on the delay of plaintiffs in expanding their use of the mark; indeed, they [ ] expanded their use while asserting their right to do so, in the face of plaintiff’s constant complaints.” By contrast, the record here didn’t indicate that Shelter asserted its belief that it had the right to promote its work in the way it did to Design Gaps.

Design Gaps also argued that settlement discussions excused its delay, but the record didn’t support the existence of discussions, only that Shelter didn't respond to the letter.

Design Gaps also argued that there was no prejudice. Prejudice can be economic or evidentiary. For trademark, a defendant’s “assertion that it would suffer economic injury if enjoined from using” a plaintiff’s mark, “without reference to any evidence beyond the length of time it has used the mark, is simply insufficient to establish economic prejudice.” In another false advertising case, the Fourth Circuit found that “unreasonable delay prejudiced” the defendant “because of [the defendant]’s continued use of the advertisement on all of its [products] in over a dozen retail stores for years,” to the point that the plaintiff alleged that the defendant “ha[d] been unjustly enriched by over $27 million.” The record didn’t show that much here, but Shelter “demonstrated its continued economic investment in promotional materials between 2015 and 2022.”

For evidentiary prejudice, a defendant must “articulate how” intervening time “would prejudice [its] defense specifically.” Indeed, a defendant “ha[s] an obligation to adduce specific evidence of prejudice” to use this type of laches. Shelter relied on the death of a Mr. Butler, one of its principals, who communicated with Design Gaps about the challenged conduct. Design Gaps argued that it served interrogatories and requests for production on Mr. Butler ten weeks before his unexpected death and that Shelter’s refusal to answer discovery and deficient responses created the prejudice Shelter claims to have suffered. “Design Gaps has not supported this argument with citation to the record. Besides, written discovery responses are no substitute for live testimony. Any responsibility for discovery issues does not change the fact that Shelter has demonstrated some evidentiary prejudice. When considered in the context of over four years of unreasonable delay, we conclude that Shelter has carried its burden.” (Not entirely sure why it’s Shelter’s burden given the presumption of laches, but ok.)

what particularity is required when an ad campaign has zillions of possibly algorithmic variants?

Ledesma v. Hismile, Inc., --- F.Supp.3d ----, 2025 WL 3785960, No. 24-cv-03626-KAW (N.D. Cal. Sept. 23, 2025)

Blogging because it’s one of the first cases I’ve seen that has to address questions raised by algorithmically modified ads that are different for different users. Hismile allegedly engaged in fraudulent marketing of its teeth whitening products, “which promise to deliver instant and dramatic results.” Plaintiffs brought the usual California claims. The judge grants the motion to dismiss, with leave to amend (except as to a nationwide class for breach of warranty/unjust enrichment, which is out for good).

Hismile allegedly advertises its products through social media, particularly on TikTok, Instagram, and Facebook, with falsified before-and-after images, misleading celebrity endorsements, deceptive/undisclosed influencer marketing, and “customer reviews” by its own employees.

For example, ads for one product allegedly show the product’s purple serum while it is still on the models’ teeth, giving an illusion that the purple serum cancels out the yellow tones (consistent with their advertising focusing on “color correction” and the “color wheel”), but “fully rinsing off the product causes the color-correcting effect to disappear entirely.” They also allegedly used unnaturally bright lighting and models who already have very white teeth to exaggerate the before-and-after effect of another product. Celebrities paid to endorse allegedly already have very white teeth and are not bona fide users. They also allegedly made false claims of clinical proof, in contradiction to the science indicating minimal effectiveness.

Hismile’s primary argument was that plaintiffs failed to identify the specific ads they saw sufficient to satisfy Rule 9(b). (I’m not convinced that Rule 9(b) should apply to false advertising statutory claims, which were designed to change all the key elements of common-law fraud, but most courts routinely apply it.) The court agreed, but indicated its willingness to accept a somewhat more detailed pleading.

Plaintiffs argued that it was enough to describe their experiences and provide example ads. E.g., plaintiff Tanaka “relied on before-and-after images and videos on Defendants’ Instagram and TikTok, customer reviews, and customer reactions on Defendants’ website and on social media.”  It’s true that “courts have found that pleadings are insufficient where the complaint included a number of representative advertisements, but it was unclear which specific advertisement the plaintiff had seen and relied upon in making their purchase. Likewise, courts have often found it insufficient to simply point to a particular misleading and fraudulent statement or phrase that appeared in various advertisements. Courts have also found it insufficient to merely provide representative advertisements without stating that those were the same advertisements that the plaintiffs saw and relied upon.”

However, plaintiffs argued that they alleged exposure to a long-term advertising campaign, allowing their claims to proceed under In re Tobacco II Cases, 46 Cal. 4th 298 (2009), which stated that when “a plaintiff alleges exposure to a long-term advertising campaign, the plaintiff is not required to plead with an unrealistic degree of specificity that the plaintiff relied on particular advertisements or statements.” The circumstances of the advertising campaign may make it “impossible” to identify the specific advertisement that persuaded an individual to purchase a product.

The court reasoned that “this appears to be a case where Plaintiffs could potentially allege a pervasive, targeted advertising campaign over a period of time, all of which pushes the same message: that Defendants’ products will ‘instantly and dramatically whiten’ teeth.” They alleged a multi-million dollar advertising campaign on social media; they also alleged posts of fifteen or more advertisements per day. One plaintiff alleged seeing approximately sixty advertisements before deciding to purchase the products; requiring a plaintiff to “specifically identify each and every one of these sixty advertisements hardly seems practical or practicable.”

This is especially true for modern social media advertising. At the hearing (not in the pleadings, which is key), plaintiffs noted that the ads include a “seemingly infinite variations of what the ads can look like,” with multiple ads including the same video but in different orders. “One video may include the yellow rubber duck clip followed by a scientist clip, while another video may have the scientist clip come first followed by the yellow rubber duck clip or a yellow banana clip. In short, the same yellow rubber duck clip may be in hundreds of different of ads, making it difficult to identify which advertisement an individual may have seen.” The realities of social media exposure to “numerous 30-second or shorter advertisements, each of which may have focused on demonstrating that whitening worked through color-correction technology,” had to be taken into account.

Bottom line: “To find that Rule 9(b) requires a plaintiff to meet such a high standard would be the same as insulating a defendant from liability simply because they have created so many different types of advertisements that are then repeatedly pushed onto social media users. This would not be a fair result.”

However, the complaint wasn’t enough as currently pled. “Plaintiff must still plausibly allege that this is the type of advertising campaign that would not require them to identify the specific advertisements they viewed,” with allegations about its duration or their exposure; allegations about the strategy of using the same clip in multiple advertisements; and/or allegations that defendants’ social media accounts include thousands of false advertisements.  

Also, with respect to some categories of claims— “before or after videos, videos with scientists and dentists explaining color theory, and videos demonstrating color theory by wiping off purple paint from yellow objects”—there was more specific information, but some plaintiffs alleged that they relied on influencer endorsements without identifying who the influencer was and what was stated:

Significantly, Plaintiffs do not appear to allege that all influencer endorsements are false, such that every influencer endorsement would constitute false advertising. Likewise, some Plaintiffs relied on customer reviews, but do not specify who made these reviews or what they stated. Again, Plaintiffs do not allege that all positive reviews are fake, nor do they suggest that reviews from real customers would be actionable. To the extent Plaintiffs intend to rely on influencer endorsements or reviews, Plaintiffs will need to provide sufficient allegations to demonstrate that the endorsements or reviews they relied upon were false.

The court also commented, looking forward to an amended complaint, that claims of “instant” and “dramatic” whitening might well be non-actionable puffery; “[s]tatements that characterize the speed of an action with terms like ‘fast’ are frequently held to be puffery.”

literal falsity can exist without bald-faced lies, 9th Circuit confirms

InSinkErator, LLC v. Joneca Co., No. 25-286, 2025 WL 3751867, -- F4th -- (9th Cir. Dec. 29, 2025)

The court of appeals affirms the grant of a preliminary injunction, previously discussed, against Joneca’s advertising of its garbage disposals. InSinkErator argued that Joneca’s horsepower designations were literally false because they do not reflect the output power of the disposals’ motor, despite Joneca’s argument that its designations accurately reflect the electrical power drawn by its units.

“Joneca attributes its lower prices to various mechanical advantages, like its use of direct current and the torque of its smaller grinder turntable.” Horsepower is a unit of power; InSinkErator argued that consumers necessarily understand references to “horsepower” to mean “output horsepower”—the amount of power that a disposal’s motor can provide to the disposal’s grinding mechanism—as opposed to “input horsepower,” the electric power used by the system as a whole. The parties offered competing evidence, including expert declarations; Joneca argued that input power was used for rating disposal units under Underwriters Laboratories standard UL 430.

Was using input power ratings literally false in this context? The district court held that “[t]he advertisement unequivocally claims that a given machine has a specific horsepower, such as 1 HP, 1 1/4 HP, 3/4 HP, or 1/2 HP.” And it accepted a definition introduced by InSinkErator from a national retailer’s website that described horsepower for a disposal unit as “[t]he total power output capability from the included motor.” What about the UL guideline? It was “plainly a safety guide for ensuring that switches and controls can safely handle the input current drawn by a motor,” which provided for current input testing “regardless” of horsepower designations on the motor or accompanying packaging.

Procedural issue: what kind of review should the appellate court give to the district court’s finding of literal falsity by necessary implication? Joneca argued for de novo review to determine the meaning of the ad claims. The court of appeals declined to resolve the issue; even if ad claims should be construed de novo like contract terms, “subsidiary factual findings bearing on construction” are reviewed only for clear error. And those were the factual findings at issue here. The district court found that Joneca’s “input-based interpretation d[id] not seem reasonable.” When a court construes “technical words or phrases” by reference to “extrinsic evidence” about usage, that “factual determination, like all other factual determinations, must be reviewed for clear error.”

Joneca argued, nonetheless, that input horsepower “more closely correlates to the performance of the entire waste disposer system” as it would be used by a consumer. But that wasn’t clear error. “The district court considered battling expert opinions speaking to these questions alongside a wide range of supporting resources, including industry resources and a national retailer’s website.” (The district court also found particularly persuasive correspondence from UL engineers that “UL 430 is a safety standard for Waste Disposers and is not meant to be used to determine the horsepower ratings of Waste Disposers.” This might be hearsay, but hearsay can be considered on a preliminary injunction.)

It was not clear error to find that the horsepower claims weren’t ambiguous in context. The district court found Joneca’s proposed interpretation implausible, “explaining that UL engineers themselves refuted Joneca’s use of UL 430, its sole supporting reference.” Joneca argued that the consensus among engineers, or industry usage, wasn’t relevant, but the district court did consider the audience when it found that “Joneca had no support for its interpretation other than an inapplicable and non-consumer-facing safety standard.” Meanwhile, the materiality evidence supported the finding of literal falsity to consumers, including explanations from a national retailer’s website that “[g]arbage disposal horsepower (HP) determines what the disposal is capable of grinding” and evidence from yet another national retailer’s website discussing that “higher . . . HP” would mean “[f]ood waste will be ground into finer particles.” Thus, it was not clear error to find that Joneca’s horsepower claims referred to output horsepower by necessary implication.

Was that literally false? Joneca argued that its claims were not sufficiently unsubstantiated to meet the standard for literal falsity, because a literal falsehood has to be “bald-faced, egregious, undeniable, over the top,” or “completely unsubstantiated.” But those quotes came from discussions of “per se” falsity, as opposed to discussions of literal falsity that were “proved by evidence.” The latter category can also be literally false, and involves considerations of context and audience. (The Seventh Circuit’s “bald-faced” language is an invitation to err, and raises considerations probably better dealt with as materiality issues.) “At least when literal falsity is shown by evidence, a complete lack of substantiation for the opposing position—or absence of ‘conflicting evidence,’ as Joneca puts it—is not required.”

Materiality: The district court found that horsepower was “an inherent part of” garbage disposals because of “the importance of horsepower to the quality and characteristics of a garbage disposal.” In addition, InSinkErator’s “market research” showed that “consumers ranked horsepower as one of the top purchasing considerations for garbage disposals,” and retailers organized disposals by horsepower in shelving those products, which “signals that horsepower is an important—if not primary—distinction used by retailers to market [disposals] to consumers.” Retailer websites also expressly link horsepower to the effectiveness of disposal units, e.g., “[t]he higher the HP, the better the disposal will run.”

The court of appeals didn’t have to rule on whether the Second Circuit’s “inherent characteristic” language was appropriate; it rejected Joneca’s request for a requirement of “direct evidence showing how consumers would likely react to the alleged deception”—“like surveys and consumer declarations”—to show that a deception is material. To the contrary, “[c]ircumstantial evidence is not only sufficient, but may also be more certain, satisfying and persuasive than direct evidence.” There was no clear error in finding materiality.

Joneca argued that it submitted evidence that “consumers prefer Joneca’s disposers because of their better performance.” But the quoted customer reviews “primarily discuss how ‘powerful’ Joneca’s units are, indicating that consumers do care about power.” It didn’t matter that consumers were satisfied with their Joneca units; that didn’t show that they didn’t care about horsepower when choosing a disposal. In particular, “[b]ecause retailers display disposals to consumers by horsepower level, it was reasonable for the district court to infer that a false claim about a disposal’s horsepower—i.e., a horsepower claim that causes a disposal that lacks even the horsepower to qualify as Medium Duty to be displayed in the Heavy Duty section—would materially affect whether and how consumers would compare the unit to competing products.”

Injury: The court of appeals noted with approval the Second Circuit’s statement that “in many cases the evidence and the findings by the court that a plaintiff has been injured or is likely to suffer injury will satisfy the materiality standard—especially where the defendant and plaintiff are competitors in the same market and the falsity of the defendant’s advertising is likely to lead consumers to prefer the defendant’s product over the plaintiff’s.” The district court found that “horsepower—and thereby falsehood—is prominently displayed at the point-of-sale in retail shops” and reasoned that “horsepower is commonly used to differentiate garbage disposals.” It was not error to find that, when “a false statement is prominently displayed on a direct competitor’s product, and sold side-by-side at the same retailer as if to compare products and value, there is a real likelihood” of “diverted sales or diminished goodwill.”

The district court should have presumed irreparable injury from likely success on the merits, but its error didn’t help Joneca. That court independently found likely irreparable injury, which was not clearly erroneous. It apparently credited InSinkErator’s account that a retailer had awarded shelf space to Joneca instead of InSinkErator and that Joneca’s “fake value proposition” of inflated horsepower at a low price would influence bidding that was in process for “private label contracts with major retailers.” But, even if Joneca’s story had more details than InSinkErator’s, it wasn’t clear error to side with the latter.

court rejects politician's slogan claim

Cloobeck v. Villaraigosa, No. 2:25–cv–03790–AB (SK) (C.D. Cal. Dec. 8, 2025)

Cloobeck, a 2026 California gubernatorial election candidate, alleged infringement of the phrase “PROVEN PROBLEM SOLVER” by competing candidate Villaraigosa. Cloobeck used “I AM A PROVEN PROBLEM SOLVER” in connection with his gubernatorial campaign since March 2024; he applied to register it in late 2024. Villaraigosa later began using the phrase “PROVEN PROBLEM SOLVER” in connection with his campaign.

Obviously this is a bad claim. The difficulty is that trademark has extended far beyond protecting source indication, but source indication is the only thing that really involves a substantial government interest in suppressing political speech. We could say that the Lanham Act is only constitutional as applied to political speech when it addresses source identification, and not other kinds of (immaterial) confusion, but courts generally don’t want to do that and therefore end up having to make somewhat less convincing distinctions.

First, the court says, the Lanham Act governs commercial speech, not “purely political” expression. What about United We Stand Am., Inc. v. United We Stand, Am. New York, Inc., 128 F.3d 86 (2d Cir. 1997) (not for nothing, endorsed by the Supreme Court in JDI)? First, it’s not binding in the Ninth Circuit. Second,

the defendant was a political organization operating as an entity that provided membership, political advocacy, and fundraising services to the public. By contrast, here Villaraigosa is merely an individual gubernatorial candidate—he is not running a political organization engaged in offering “services characteristically rendered by a political party to and for its members, adherents, and candidates.” In addition, in United We Stand, the court emphasized that the defendant’s use of the mark was tied to soliciting contributions, memberships, and event participation, activities with clear commercial characteristics under the Commerce Clause.

Here, however, Villaraigosa’s use of “PROVEN PROBLEM SOLVER” occurs in the course of political messaging, debates, and campaign communications—not the sale or advertisement of goods or services.

I tend to think this distinction is unpersuasive even though I accept the result in United We Stand. [Side note: United We Stand was a default judgment, and so the facts are particularly unhelpful—I’m trying to track down some images if they're available.]

Political messaging and campaign communications also routinely involve soliciting contributions, event participation, and even memberships (donor’s circles!). They’re two different ways of saying the same thing. Please note the “contribute” button on these screenshots from defendant’s website, included in plaintiff’s complaint:

Which is to say, individual candidates promote services/participate in commerce just as much as political parties. However, the role of a name compared to that of a slogan can provide a meaningful difference: a name tells you who is speaking in a much more direct and unambiguous way than a slogan. It is a core source-identifier, where the interest in avoiding confusion is at its highest.

The court here also distinguishes other political speech cases like Browne v. McCain, 611 F. Supp. 2d 1073 (C.D. Cal. 2009), which applied the Lanham Act to unauthorized use of a musical work in political advertising as a sponsorship/approval case. The court said that the use of “PROVEN PROBLEM SOLVER” here “does not implicate confusion over the origin or sponsorship of goods or services, but rather falls within the heartland of core political expression. Accordingly, while Browne recognized that the Lanham Act may extend to certain political activities when there is a significant risk of confusion, this Court is unconvinced the Lanham Act is applicable to the political circumstances at bar.”

OK, but (1) if the issue is lack of confusion, no special treatment for political speech is required; (2) if the issue is that political speech requires us to tolerate more risk of confusion, that should be said outright; (3) if the factual claim is that this kind of political speech is just inherently less likely to cause confusion than two nearly identical political party names or the use of famous songs by famous entertainers, then that should also be said outright. To be clear, I think both (2) and (3) are correct and also more helpful than just saying “these are different situations,” because knowing why they’re different is useful. Why couldn’t one politician endorse another? Brad Lander and Zohran Mamdani cross-endorsed in their primary—and although if you’re reading this, you probably understand why that’s different, most Americans have only a vague understanding of ranked-choice voting.

The court thought this case was more like Think Rubix, LLC v. Be Woke. Vote, No. 2:21-CV-00559-KJM-AC, 2022 WL 1750969 (E.D. Cal. May 31, 2022), where the slogan “Be Woke. Vote” slogan was “inherently intertwined” with social and political advocacy and therefore noncommercial under the Lanham Act. “Both Think Rubix and the present case involve political and civic engagement campaigns that use short punchy phrases as part of their political messaging. In each, the marks’ purpose is to inspire individuals to vote, not to identify or promote a commercial product or service.” “PROVEN PROBLEM SOLVER” was also used in campaign materials and messaging to persuade voters, “not to engage in commercial trade.”

[Political fundraising is apparently “commercial trade,” though, at least when a party does it—this is not as good of a dividing line as “name” for purposes of protecting political speech.] “Villaraigosa is not selling goods or services or participating in the marketplace—he is seeking votes from the public for his 2026 California gubernatorial campaign.” [We’ve just stuffed the relevant considerations into the definition of “participating in the marketplace,” though—was the McCain campaign “participating in the marketplace” when it ran its allegedly infringing ad? If so, how was it doing so differently than defendant here? Are political endorsements a relevant “market”?]

Even if the Lanham Act did apply, there was no plausible risk of confusion.

Voters understand that Cloobeck and Villaraigosa are two distinct individuals and political candidates—they are opponents in a high-profile gubernatorial election. They have separate and distinct campaign websites, social media accounts, and both engage with the public widely and separately through campaign speeches and messaging. No reasonable person would believe Cloobeck and Villaraigosa are affiliated simply because both use a descriptive phrase commonly used by political candidates for their campaigns. Moreover, the [complaint] contains no allegations of misdirected donations, mistaken identity, or any other indica of confusion.

“PROVEN PROBLEM SOLVER” was also generic for a desirable political trait, not a source identifier. “When voters consider candidates for public office, they naturally seek individuals who can solve the problems of their communities.” Numerous politicians have used the phrase “proven problem solver” in campaign materials “dating back decades. This signifier in politics can be traced all the way back as far as 1989.” [So far back! /is old] “Granting exclusive rights to a single candidate for such a common descriptor would remove a phrase from ordinary political discourse and risk chilling core campaign speech.”

Cloobeck analogized to political trademarks obtained by other candidates, citing examples such as “MAKE AMERICA GREAT AGAIN,” “YES WE CAN,” and “BUILD BACK BETTER.” But “those slogans were historically distinctive and uniquely associated with a specific candidate or movement,” not merely descriptive. [Ugh. The first two at least were very deliberately, intentionally not new! If we want to protect political speech (we should), we need (a) a high barrier for protecting political slogans as a factual matter and (b) a test that is hesitant to impose liability on politicians’ speech. Both are useful, (a) to prevent the use of political trademarks as a sword against political speech and (b) as a shield for political speech even against non-politicians’ claims.]

[Side note that the court calls the phrase at issue a “descriptive, generic” slogan, and TM law would say there’s a big difference between the two in terms of theoretical protectability—but it doesn’t matter here, and also the PTO understandably requires more evidence of distinctiveness if something is highly descriptive/bordering on generic, so the court’s instincts here make sense.]

no abuse of discretion in PI requiring advertiser to terminate liens that it told homeowners weren't liens

People v. MV Realty PBC, LLC, 2025 WL 3719896, B341121 (Cal. Ct. App. Dec. 23, 2025)

Blogging more in my property law prof hat, but with false advertising. MV Realty recorded liens on its customers’ properties, but assured homeowners that these were “notices” and not “liens.” The court of appeals affirmed a preliminary injunction requiring, inter alia, that MV Realty terminate its recorded liens.

MV Realty’s “Homeowner Benefit Program” sold “Forward Listing Contracts” to California homeowners. “The program offered a cash payment to homeowners, of approximately .27 percent of their home value, in exchange for the homeowners granting MV Realty the exclusive right to sell their home.” MV Realty marketed the program as a “one-of-a-kind, innovative program that allows homeowners the chance to receive an immediate cash payment by agreeing that [MV Realty] will be your Real Estate agency if and when you decide to sell your home in the future” with “no credit check,” “[no] [r]equirement to [s]ell [y]our [h]ome,” and “no obligation to repay the money ....” This requirement applied if the homeowner sold the home within the next 40 years; if they didn’t use MV Realty, they were required to pay a three percent penalty of either the sale price or of the home’s initial valuation by MV Realty, whichever was higher, the “Early Termination Fee.”

The agreement stated that the homeowner’s “obligations hereunder shall constitute covenants running with the land” and granted MV Realty “a lien and security interest” in the property as security for the homeowner’s obligations under the contract. MV Realty promised to “consider in good faith any request from [the homeowner] to facilitate such refinancing or new mortgage by subordinating the lien of this [a]greement to the refinanced or new mortgage.”

Unsurprisingly, “[i]nternally, MV Realty referred to the memorandum as a lien and promoted it to investors as a security feature of a future revenue stream. Externally, underwriters, prospective lenders, and escrow officers treated the memorandum as a lien on the property.” But prospective customers heard a different story. “On its website and in its marketing e-mails, MV Realty stated it would not record a lien on the homeowner’s home; it would record only a memorandum to serve as public notice of the homeowner’s obligations under the agreement. MV Realty trained its telemarketers to tell homeowners it would not record a lien on their homes.”

The People sued for violations of the UCL and FAL. The People argued that MV Realty’s fraudulently placed liens caused ongoing harm to over 1,400 California homeowners who, as MV Realty explained in an investor presentation, are “unable to convey clean title without receiving a lien release from MV Realty.” The People “submitted declarations from over a dozen homeowners who contracted with MV Realty, and several more from declarants whose family members contracted with the company.” Homeowners stated that they never would have entered into the agreement if MV Realty had explained that there was a lien to them.

A few explained how the lien became an obstacle to their later obtaining a loan secured by the property, and they eventually gave up on refinancing. Others stated they were forced to pay the Early Termination Fee, which was ten times the amount of the consideration they had received from MV Realty, before they could secure refinancing. Many shared their views that MV Realty lied to them, that they no longer trusted MV Realty to sell their home, and that they felt trapped by the agreement. Almost all homeowner declarants stated they had not seen the 12-page agreement until a notary, who could not explain the terms of the agreement, brought the document to their home to be signed.

MV Realty submitted 51 declarations from California customers who stated that they were not misled by MV Realty and that they were aware that “MV Realty ha[d] the right to record th[e] [m]emorandum on my property records to provide notice of the agreement.” Its own spreadsheet showed that it did not provide the agreement to 80 percent of California homeowners who signed it until the moment a notary presented it to them. MV Realty admitted homeowners had difficulty refinancing because of the memorandum; there was evidence that some lenders rejected MV Realty’s offers to subordinate the memorandum. Its own document, “Termination of Memorandum of MVR Homeowner Benefit Agreement,” explained that the memorandum was an “encumbrance.”

The trial court found that “[MV Realty] knew the memoranda operated as liens, represented this to their investors, but materially misrepresented the effect of the memoranda to the Homeowners.” Thus, it granted the preliminary injunction, including the requirement to remove the liens.

The UCL and FAL are “broadly enforced to protect the public, including “extraordinarily broad” remedial power to enjoin prohibited business practices “in whatever context they may occur.”

Under California law, “[w]here a governmental entity seeking to enjoin the alleged violation of an ordinance which specifically provides for injunctive relief establishes that it is reasonably probable it will prevail on the merits, a rebuttable presumption arises that the potential harm to the public outweighs the potential harm to the defendant. If the defendant shows that it would suffer grave or irreparable harm from the issuance of the preliminary injunction, the court must then examine the relative actual harm to the parties.” An injunction in such circumstances is only appropriate if the trial court concludes, balancing (1) the degree of certainty of the outcome on the merits, and (2) the consequences to each of the parties of granting or denying interim relief, that an injunction is proper. The standard of review is abuse of discretion.

First, the court of appeals found there was no error on likely success on the merits. MV Realty argued that it “properly disclosed to homeowners that the memoranda would be recorded with the county recorder’s office,” so it made no material misrepresentations to homeowners, and that the “memorandum” wasn’t legally a “lien.” The court of appeals understandably disagreed. The evidence demonstrated that “[MV Realty] knew the memoranda operated as liens, represented this to [its] investors, but materially misrepresented the effect of the memoranda to the Homeowners.”

MV Realty argued that a lien has to be “a legal claim against a property to secure the payment of a debt” and the memorandum was a mere “notice disclosing its contract rights,” such that MV Realty could file a lien for 3% of the value of the property upon sale or transfer if the consumer breaches the agreement and does not use MV Realty in the real estate transaction.

Not so. “A lien is a charge imposed in some mode other than by a transfer in trust upon specific property by which it is made security for the performance of an act.” The documents called it “a lien and security interest.” More than once! MV Realty called it a lien when talking internally or to investors, and “[u]nderwriters who analyzed the memorandum instructed their agents to treat it as a lien or a mortgage.” There was substantial evidence of likely success on the merits.

What about balancing the harms? The trial court stated that it was “not persuaded that [MV Realty has] shown grave or irreparable harm to warrant denial of the preliminary injunction,” though it accepted MV Realty’s contention that if the preliminary injunction issued, it would “essentially [be] force[d] ... to cease business in California and require[d] ... to terminate thousands of [m]emoranda, which it ha[d] already provided consumers consideration for.” The court also accepted MV Realty’s contention that it would be put “ ‘in a state of financial disarray.’ ” Nonetheless, even if the district court wrongly found no grave or irreparable harm, MV Realty was not prejudiced and there was no clear error because the trial court acceptably balanced the harms to the parties. (And of course that’s one completely coherent way to read the statement that MV Realty didn’t show harm to warrant denial of the PI.)

“At this stage of the analysis, no hard and fast rule dictates which consideration must be accorded greater weight by the trial court. For example, if it appears fairly clear that the plaintiff will prevail on the merits, a trial court might legitimately decide that an injunction should issue even though the plaintiff is unable to prevail in a balancing of the probable harms.” The goal is to minimize the harm that would be caused by an erroneous interim decision.

The trial court didn’t clearly err when it found there would be imminent, irreparable harm to homeowners bound by the agreement if the preliminary injunction did not issue because each homeowner would be bound by terms they never would have knowingly accepted. Not one of the roughly 70 homeowners who submitted declarations stated that a cloud on marketable title “was something they willingly bargained for in exchange for the .27 percent of their home value they received as consideration.” (Yeah, I noticed that about the quote from MV Realty’s declarations too.)  “Even when MV Realty offers to subordinate its lien, as the evidence shows it has done in the past, many lenders will not accept the subordination. A homeowner who wishes to refinance or take a home equity loan, therefore, must pay the Early Termination Fee to clear the title.” Thus, there was no abuse of discretion in balancing the harms.

MV Realty proposed that instead of ordering it to terminate all memoranda, the trial court could order it to: provide notice to every customer, title company, and lender that the memoranda is not a lien; subordinate when requested to do so by a lender; and terminate a memorandum if a lender rejects the subordination. None of these suggestions was a deviation from what MV Realty represented was its contemporaneous practice to assist homeowners with refinancing. The People submitted evidence that homeowners nevertheless continued to suffer harm as they struggled to get in touch with the company to request subordination and complete the lengthy process of clearing title.

There was no abuse of discretion in finding these steps insufficient.