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act it contains no vegetables but does contain avocados the court found the claim implausible the front of the pouch displays multiple images of avocados along with images of apples banana and pineapples the back lists its ingredients as pineapple banana apple avocado and mint the fda classifies avocados as fruit and mint as an herb so does the pouch contain veggies the target audience is allegedly health conscious parents who are willing to pay a premium to ensure that the food that they provide to their children is nutritious and includes vegetables plaintiff brought the usual california claims dismissal is appropriate if the claim that a label is misleading runs counter to ordinary common sense or the obvious nature of the product and a survey of dictionary definitions of which the court takes judicial notice suggests that the question of whether an avocado is a vegetable is not so clear cut in common parlance notwithstanding the technical botanical definition of avocados as a fruit avocados which contain a pit like peaches or cherries fit the scientific definition of the product of fertilization in a plant with its modified envelopes or appendages specifically the ripened ovary of a seed plant and its contents but another meaning of fruit is the usually edible reproductive body of a seed plant especially one having a sweet pulp associated with the seed avocados like peppers zucchini and other botanical fruits lack the sweet pulp that would place them firmly within the fruit category of popular usage avocados also fit within broad definitions of vegetable such as a usually herbaceous plant such as the cabbage bean or potato grown for an edible part that is usually eaten as part of a meal different dictionaries variously call an avocado a fruit or a vegetable famously in construing a tariff statute the supreme court held that while botanically speaking tomatoes are fruits in the common language of the people they are vegetables nix v hedden 149 u s 304 307 1893 as are the technical seeds beans and lentils avocados are like tomatoes commonly served at meals as ingredients in e g burritos and sandwiches and not like fruits as a sweet snack or a part of a dessert and people eating chips and guacamole are not likely to think they are eating a fruit dip at the very least the claim wasn t unambiguously false see e g henderson v gruma corp 2011 wl 1362188 c d cal apr 11 2011 granting a motion to dismiss on the grounds that a label promising garden vegetables was confirmed by the inclusion of avocado powder dehydrated onion garlic powder and bell pepper gates v upfield us inc 2024 wl 3362857 c d cal july 9 2024 avocado oil is a type of vegetable oil known for its healthy qualities granting a motion to dismiss because a product labeled made with avocado oil and 79 vegetable oil spread would not imply to a reasonable consumer that the product was made without other forms of vegetable oil nor was this plausibly misleading the front label was ambiguous enough that a reasonable consumer would have consulted the back label ambiguous in this context does not simply mean susceptible to more than one reasonable meaning but rather that a reasonable consumer would necessarily have required more information before concluding that the products front labels were making a specific promise such inherent ambiguity was present here the context reinforced that with explicit reference to avocado in the name of the product and a label showing multiple images of avocados as well as bananas apples and pineapples there was no other conceded vegetable shown there is thus an ambiguity as to whether the product contains vegetables other than avocados faced with this ambiguity the reasonable consumer is expected to check the back label for complete information the likelihood that a reasonable consumer would look to the back label was underscored by the fact that the product s target audience was allegedly health conscious parents who would have particular reason to check the back label posted by rebecca tushnet at 10 42 am no comments email this blogthis share to x share to facebook share to pinterest thursday august 13 2026 trademark claim proceeds with essentially no detail despite trade dress failure honest company inc v butterblu llc 2026 wl 2211834 no 2 26 cv 00019 wlh mbk c d cal jul 28 2026 honest sued former partner butterblu for trademark infringement and related claims honest sells products in the diaper and wipes skin and personal care and household and wellness categories it registered two trademarks for honest registered for swaddling and crib blankets and various children and infant related products and also owned honest baby clothing and logo for baby and toddler related products the parties previously entered into an agreement where honest took over ownership of all products in inventory and butterblu sourced marketed and sold these products in exchange for a service fee honest alleged breach for among other things secretly developing and selling a baby apparel product line in direct competition with honest baby clothing brand products honest claimed rights in two print designs with stylized holiday trees and a striped pastel rainbow used on various products that butterblu allegedly copied claimed honest design claimed honest design consumers allegedly commented on online forums such as reddit that butterblu s products look like honest products but rebranded or similar language that butterblu is the creator of honest s products and otherwise expressed confusion as to the source of and or affiliation between the parties respective products honest alleged that at least one consumer has contacted honest with questions about a recent purchase in which the consumer intended to buy honest products from amazon but instead received products bearing a butterblu label honest pine pjs butterblu pine pjs honest rainbow pjs butterblu rainbow pjs butterblu s website allegedly includes a misleading statement that honest s new leadership team ultimately decided to exit the apparel space showing a common tolerance for trademark claims despite butterblu s argument that honest didn t plead use of its marks it was enough to allege that butterblu has used honest s intellectual property without authorization and mislead consumers and prospective consumers into believing the infringing products are affiliated or associated with or sponsored by honest and to submits screenshots showing that butterblu sold products that bear striking resemblance to its own products products not marks ugh and pleading that reddit users have commented on forums about honest and butterblu products looking similar and have expressed confusion as to the source of and or the affiliation between the parties respective products also sufficed plus many courts have held that an ex licensee s continued use of a trademark is enough to establish likelihood of confusion and the court agreed ugh again which trademark especially because the court also says that the trade dress infringement claim failed for want of pleading secondary meaning explain to me how this screenshot shows use of the honest marks honest alleged that intentional copying showed secondary meaning but proof of deliberate copying is not determinative competitors may intentionally copy product features for a variety of reasons thus pleading intentional copying alone is insufficient the online comments about looking like or rebranding weren t enough because they didn t specifically discuss the two claimed prints and looking like does not equal confusion why doesn t this also doom the claim about trademark infringement since the commenters doesn t seem to depend on the word marks or logo false advertising butterblu argued that honest s own public statements confirm the truth of the alleged false statement that honest was exiting apparel and that the continued availability of remaining products during a sell through or transition period does not render the apparel exit statement false but w hether the alleged misrepresentations are false or misleading is a factual question generally inappropriate for resolution on a motion to dismiss the complaint alleged that honest branded apparel continues to be advertised offered for sale and sold to consumers contrary to the representations made on butterblu s website and that honest has a one year sell off period for existing inventory honest also argues that butterblu knew that the statement was misleading because honest explicitly stated in its earnings release that it was exiting our relationship with our current apparel provider i e butterblu and did not state that it was exiting the apparel space as a whole this was enough on a motion to dismiss posted by rebecca tushnet at 2 08 pm no comments email this blogthis share to x share to facebook share to pinterest labels false advertising trademark consumers face more skepticism than competitor in online gaming case mitchell v skillz platform inc 2026 wl 2212876 no 26 cv 00674 amo n d cal jul 31 2026 although competitors can aggregate harm to sue under the lanham act consumers the direct victims of false advertising tend to have more trouble skillz just lost a big claim to its main competitor over falsely advertising that it didn t use bots in mobile cash games here with similar allegations under various state laws the consumers struck out plaintiffs didn t sufficiently allege reliance causation or lack of an adequate remedy at law for the restitution claim representations that users match with real players and have no bots guaranteed were plausibly false and deceptive as were representations that users match with players of equal skill but the representation that users can make easy withdrawals was non actionable puffery with no set meaning the claims failed because plaintiffs didn t allege that they relied on or even read any particular representation most of the representations are allegedly located across skillz s website and social media accounts so it is not reasonable to infer that plaintiffs must have seen them even an in app badge displayed in front of every single player every time they launch a skillz powered application since at least the beginning of 2024 wasn t enough to plead that they actually read the alleged misrepresentations seems pretty fixable but language quoted rejecting the rico claim was bad news and maybe another reason to avoid rico claims a s the ninth circuit noted in a similar case there may be no single logical explanation for gambling it may be an addiction a form of escape a casual endeavor a hobby a risk taking money venture or scores of other things as a result it may well be that the representations did nothing to influence users perceptions or that users played fully aware of how the platform operate s while the evidence in the competitor case tends to negate that idea users had to launch a skillz application before seeing the in app badge so they might have already decided to play before seeing the representations at issue here posted by rebecca tushnet at 1 37 pm no comments email this blogthis share to x share to facebook share to pinterest labels class actions consumer protection false advertising novo struggles once again to allege deception by sellers of compounded drugs novo nordisk v zealthy inc 2026 wl 2212889 no 25 cv 06391 alc s d n y jul 31 2026 novo nordisk makes the fda approved ozempic rybelsus and wegovy while zealthy markets and facilitates access to drug products including compounded medications containing semaglutide novo alleged that zealthy made false representations to consumers that compounded semaglutide medications are equivalent to plaintiffs medications clinically studied evaluated by the fda and deemed safe and effective specifically zealthy stated that glp 1 medications with active ingredient semaglutide are fda approved for type 2 diabetes and have proven effective for weight loss m edications with the active ingredient semaglutide have shown 15 20 average weight loss and semaglutide is the active ingredient in wegovy and ozempic among other similar messages this allegedly violated the lanham act and ny gbl 349 the court found that novo failed to state a claim lanham act false advertising as to fda approval novo argued that zealthy s statements about glp 1 medications being fda approved were false in that such statements represent compounded semaglutide products as fda approved but zealthy also facilitates prescription of novo s fda approved medications and so its statements could reasonably describe novo s own medications making them not literally false novo failed to allege facts indicating likely deception and thus didn t properly allege implicit falsity it also failed to allege deliberate deception which could lead the court to presume deception clinical efficacy novo argued that zealthy misled consumers by describing semaglutide medications as effective without having conducted any clinical studies on the products but novo bore the burden of showing falsity not lack of substantiation equivalence novo pointed to statements that semaglutide is the active ingredient in wegovy and ozempic zealthy also offers semaglutide the active ingredient in ozempic wegovy and i f you were thinking about doing the medication or you were on the medication and insurance doesn t cover it anymore this is a great replacement it s the same medication semaglutide and it works just the same but there was no showing of falsity there although novo alleged that compounded medications were manufactured through different processes and that compounded medications do not have the same effectiveness assurances as fda approved drugs that wasn t enough to allege that the two types of medications do not work the same however novo would have had standing if it had pled falsity misleadingness indeed the court would be inclined to presume injury given that the ads drew direct comparisons between novo s products and compounded drugs in addition claims about fda approval were not fdca preempted because 1 it s preclusion when it comes to the federal lanham act and 2 the court wouldn t have to interpret or apply the fdca to conclude that compounded drugs aren t fda approved on the other hand e valuating whether defendant falsely asserted that compounded medications have shown certain levels of weight loss and whether such statements could only be made with the backing of clinical trials may well be precluded by the fdca so too with equivalence given this result the court declined to address the state law claims posted by rebecca tushnet at 1 17 pm no comments email this blogthis share to x share to facebook share to pinterest labels false advertising fda preclusion not with a bang but with a whimper of whipped dogs vip prevails in ninth circuit vip prods llc v jack daniel s properties inc no 25 2027 9th cir aug 4 2026 vip prevailed on remand on the confusion claim but lost on dilution by tarnishment th...
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