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cohol sales and dj appearances nobriga v clear blue specialty insurance company 2026 wl 1998727 d conn july 10 2026 used dictionary definitions to define a promotional event as a noteworthy happening or social occasion or activity serving the means of furthering the growth or development of something particularly the acceptance and sale of merchandise through advertising publicity or discounting based on this definition ads for the café s cinco de mayo party halloween and st patrick s day parties and baseball night constituted advertisements for promotional events e ach advertisement offered discounts on food and entertainment with the goal of bringing additional customers through the café s doors and tied such discounts to specific holidays or themed nights such as baseball night making them advertising for promotional events the court agreed that a promotional event need not be in furtherance of something other than a business itself but it thought that the common understanding of promotional event wasn t broad enough to encompass every promotion put in place by a business while holiday parties qualify as promotional events the same couldn t be said for ads tied to a recurring weekly promotion such as baseball night here some of the events advertised seemingly occurred on the same day each week or at a defined time every day those were a routine part of the insured s business not a noteworthy happening or social occasion and were untethered to anything but the promotions themselves there was no special food merely offering drink and dance specials does not definitively transform a promotion into a promotional event nor did giving the promotion a title the lack of ties to a special occasion or specific occurrence made the exclusion inapplicable to rule otherwise would require reading the word event out of the phrase promotional event the court also rejected the insurer s argument for judgment on the pleadings that the exclusion applied because the underlying litigation arose out of the publication of a celebrity image or likeness but not all recognized models are celebrities more facts were required clear blue specialty ins co v 05 petete inc 2026 wl 2196263 no 26 1891 e d pa jul 29 2026 similar result here on the same language one underlying plaintiff pled herself out of coverage by pleading that she was a social media celebrity but the others didn t being well known in one s profession or endeavors does not by itself raise one s status to the level of a celebrity as for the promotional events exclusion contrabando s high voltage wednesdays exclusive fridays matinee sundays and euphoric saturdays were certainly promoting euphoria s nightclub itself and are using the images of plaintiffs to do so but the ads were merely encouraging the presence of patrons on wednesdays fridays saturdays and sundays generally and are not pointing to any wednesday friday saturday or sunday in particular it is the standard business of a nightclub to sell liquor to its clientele and to provide musical entertainment the offer of reduced prices from time to time is a standard business practice to entice customers the reduced prices are not tied to a specific event or events but are in place for all wednesdays fridays saturdays and sundays while the world series is an event the baseball season is not an event likewise while the grand opening of euphoria s nightclub or the opening of any business would be an event its continual and regular day to day operation is not in ordinary parlance deemed to be an event or series of events such operation may continue for years thus the ambiguous policy language was construed against the drafter insurer and it had a duty to defend against three of the underlying plaintiffs claims and thus a duty to defend in the underlying lawsuit posted by rebecca tushnet at 1 37 pm no comments email this blogthis share to x share to facebook share to pinterest labels advertising insurance right of publicity executive liable for false advertising can t be made to disgorge salary 9th circuit rules multiple energy technologies llc v casden 2026 wl 2196259 no 24 4691 f 4th 9th cir jul 30 2026 the parties compete in the market for bioceramic athletic wear components that are supposed to enhance the wearer s circulation support muscle recovery and provide other health benefits this case asks whether an officer of a corporation can be sued for tortious interference of contract when he is found to have induced the corporation to breach a contract normally an agent acting on behalf of a principal is immune from that kind of to avoid double recovery from the principal for the breach and the agent for interference there s an exception when the supposed agent acts not for and on behalf of his principal but to benefit himself at the expense of his principal the court applied those principles it was not enough to avoid immunity that the agent benefited by inducing a breach e g he got a bonus for sales goals as long as he was also seeking to advance the company s interests the district court also awarded disgorgement and attorney s fees for a separate claim brought by the plaintiff under the lanham act the disgorgement was also reversed in 2019 met sued hologenix for falsely advertising its product celliant as being fda approved the parties settled with hologenix agreeing to pay 2 5 million in installments and to refrain from representing that its product was fda approved or that the fda determined that it has health benefits before hologenix made all its payments though it filed for bankruptcy met then sued hologenix s ceo casden hologenix allegedly continued to represent that the fda determined that celliant has health benefits representations that casden approved or made himself in violation of the settlement agreement met alleged tortious interference with hologenix s performance of the settlement agreement including by voting to file for bankruptcy and violation of the lanham act the district court found no immunity for casden stating that he was eligible for a bonus of up to fifty percent of his base salary per year based on hologenix s business performance and t hus by falsely promoting celliant casden positioned himself to gain personally a jury s advisory finding was that casden acted to advance his own personal interests at the time he interfered with the settlement agreement although the jury also found that he was acting in his official capacity on behalf of hologenix it awarded met 2 5 million in damages for the tortious interference claim the jury also returned a verdict in met s favor on its false advertising claim under the lanham act and awarded nominal damages of one dollar the district court then awarded met disgorgement of casden s salary earned from 2020 through 2023 trebled that amount and also awarded attorney s fees of nearly 600 000 under the act the total came to over 6 million i won t say much about the rather straightforward agency law issue with tortious interference where an employee acts within the scope of his employment it does not matter whether his conduct in inducing the breach of contract was motivated by ill will or malice on his part lanham act the disgorgement ruling was erroneous casden s salary is not his profits the statute says that under the statute to assess profits the plaintiff shall be required to prove defendant s sales only and the defendant must prove all elements of cost or deduction claimed but met failed to show that casden had any sales hologenix made sales but it wasn t the defendant citing dewberry group inc v dewberry engineers inc 604 u s 321 2025 without sales no profits but the fee award survived the jury found that casden s representations concerning celliant were deliberately or intentionally false in violation of the lanham act so there was no abuse of discretion posted by rebecca tushnet at 1 23 pm no comments email this blogthis share to x share to facebook share to pinterest labels damages false advertising remedies challenge to ftc s substantiation requirement isn t yet ripe xlear inc v u s fed trade comm n 2026 wl 2150208 no 2 25 cv 00484 dbb cmr d utah jul 27 2026 in 2021 the ftc brought a civil action against xlear because its covid 19 claims allegedly lacked substantiation and violated the ftc act xlear is a developer and manufacturer of xylitol based hygiene products such as nasal sprays toothpastes mouthwashes and chewing gums that allegedly promote good health and reduce the risk of disease advertising its nasal spray as effective for the prevention and treatment of covid 19 allegedly violated sections 5 and 12 of the ftc act as well as the covid 19 consumer protection act of 2021 in march 2025 the enforcement action was dismissed with prejudice not satisfied xlear sued seeking a declaratory judgment under the apa that sections 5 and 12 of the ftc act do not and cannot impose an affirmative burden of substantiation on regulated parties it alleged that its xylitol based hygiene products are effective against various pathogens yet fear of the likelihood of future ftc enforcement allegedly prevents xlear from taking steps to advertise its products benefits including protection against covid 19 which it alleges remains a serious health risk to americans it argued that precedent upholding the ftc s substantiation requirement is no longer good law under loper bright enterprises v raimondo and that the requirement chills xlear s first amendment speech rights and violates its equal protection rights by allegedly shifting the burden of proof to defendants to show that their advertising claims are substantiated i ve been waiting for this argument for a while the claims weren t ripe here xlear cannot point to a definitive position the ftc has taken on advertising claims it has yet to make let alone one that inflicts an actual concrete injury because whether an advertisement is deceptive turns on its content making it a fact specific inquiry xlear argued that it was making a facial challenge to win such a challenge xlear needed to show that sections 5 and 12 of the ftc act never require a health claim to be substantiated it didn t loper bright didn t matter because the court is not interpreting the statute much less deferring to agency action rather the court is determining the ripeness of the case and addressing the standard for a successful facial challenge xlear also argued that the ftc has taken a definitive position final action by highlighting the substantiation requirement going back to 1984 but the distinction between general statements of policy and rules is critical because general statements of policy neither determine rights or obligations nor occasion legal consequences an agency s policy statements do not establish a binding norm or in other words do not have the force and effect of law nor can they be enforced against parties or expose them to civil and criminal liability thus even if the court were to agree that the substantiation requirement represents the ftc s definitive statement of its position under the first prong of the final agency action test the requirement still fails under the second prong because the ftc s substantiation requirement does not determine the rights and obligations of the parties i wonder what the texas district court hearing the gender affirming care cases thinks about this argument since it is very much ripe there posted by rebecca tushnet at 12 23 pm no comments email this blogthis share to x share to facebook share to pinterest labels false advertising ftc always plead a first use date court struggles with famous foreign marks doctrine without it teng v tao no 2 25 cv 05360 wlh ajr 2026 wl 2055494 c d cal jun 5 2026 teng sued tao for various trademark related claims teng is allegedly the chairman of plaintiff heilongjiang tang huo kung fu catering co a chinese company that operates restaurant businesses abroad the tang huo kung fu brand allegedly operates widely in asia including in china and south korea and has received various awards and media recognition under these marks teng alleged that overseas reputation has created recognition of their marks among certain u s consumer communities particularly in asian communities in the united states such as in los angeles specifically los angeles koreatown and berkeley california but alleged no first use in us commerce though it did allege that when tao filed to register at the uspto in 2019 it had already existed for 11 years with nearly 300 restaurants in china and 150 restaurants in south korea among other locations teng did not allege first use in the us or anything more than an application to register in the us which was abandoned defendants operate at least one restaurant in california using the name tang huo kung fu spicy hot pot defendant tao jin secured a registration for its word design mark in july 2020 the court concluded that plaintiffs didn t and apparently couldn t allege a valid ownership interest in the mark at issue they claimed that the famous mark exception applied under grupo gigante whose logic i don t think survives abitron but the fourth circuit s belmora workaround probably does under grupo gigante where the mark has not before been used in the american market the court must be satisfied by a preponderance of the evidence that a substantial percentage of consumers in the relevant american market is familiar with the foreign mark at this stage the court is persuaded that plaintiffs have sufficiently alleged the necessary level of consumer recognition necessary to invoke the famous mark exception to the territoriality principle with respect to the market in which defendants use the mark that is berkeley and la s koreatown but they needed to replead to actually allege a date of first use which was also key to their cybersquatting claim false association 43 a doesn t explicitly require ownership citing blinded veterans thus plaintiffs sufficiently pled a claim query suppose they re the junior user full stop if ownership isn t required for a 43 a claim why can t big entrants use reverse confusion to eliminate small senior users is your answer causation is your answer that this wouldn t work because the small senior user could assert a counterclaim but if there s no registration how would a 43 a counterclaim be resolved except by using ownership priority rules abandoning a separate concept of unfair competition has caused many such puzzles anyway plaintiffs sufficiently pled confusion e g a post on red note that a customer was disappointed in the quality of defendants food apparently attributing the failure to tang huo kung fu puzzlingly the court held that the inability to make a trademark infringement claim also meant there was no actionable statement under california s fal despite the survival of the false designation of origin claim cancellation of registration fraud requires pleading with particularity fraud in procuring a trademark 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