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d 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 registration or renewal occurs when an applicant knowingly makes false material representations of fact in connection with his application plaintiffs insufficient allegations of foreign fame and diaspora recognition do not establish u s use or ownership without a plausible allegation that plaintiffs possessed superior u s rights at the time of the trademark application plaintiffs cannot demonstrate that any uspto statement about ownership or others rights was false much less knowingly false plaintiffs counsel really needs to use belmora to replead nor did they allege facts demonstrating that any specific uspto submission was actually false material or made with an intent to deceive they also sought cancellation on 2 a false affiliation grounds under belmora t o determine if a petitioner falls within the protected zone of interests we note that 14 3 pertains to the same conduct targeted by 43 a false association actions using marks so as to misrepresent the source of goods that worked here for services too at the pleading stage posted by rebecca tushnet at 11 39 am no comments email this blogthis share to x share to facebook share to pinterest labels trademark monday august 10 2026 chobani s zero sugar yogurt with allulose violates fda regs despite fda s nonenforcement 7th circuit reverses preemption ruling franco v chobani llc no 25 2087 7th cir jul 27 2026 federal law requires that foods advertised as sugar free contain less than a half gram of sugar chobani sold chobani zero sugar yogurt but it included four grams per serving of allulose a naturally occurring sweetener if allulose is a sugar under federal law franco s state law false advertising claims could proceed but if it wasn t then there was express preemption because federal law doesn t allow states to impose additional requirements on food labeling regulated by the fdca the district court deferring to fda enforcement guidance found preemption the court of appeals reversed finding allulose to be a sugar under the regulation the relevant regulation defines t otal sugars as the sum of all free mono and di saccharides such as glucose fructose lactose and sucrose and a food may not be labeled sugar free or zero sugar or similar terms unless it contains less than 0 5 g of sugars as defined by the previous regulation and meets other requirements hello loper bright interpreting the law is a job for the court though the court isn t required to ignore the fda s perspective about the meaning of its regulations and deference to agency interpretation of an ambiguous rule can be appropriate the fda has several times expressed a view in 2016 it observed that the final rule does not reach a decision as to whether allulose should be excluded from the definition of sugar and allulose as a mono saccharide must be included in the total sugars declaration pending any future rulemaking that would otherwise exclude this substance from the declaration in 2020 it issued industry guidance advising manufacturers of fda s intent to exercise enforcement discretion for the exclusion of allulose from the amount of total sugars and added sugars declared on the label pending review of the issues in a rulemaking the issue appears to be that the fda traditionally used chemical structure to identify sugars but novel sugars might also count depending on factors such as an association with dental caries and how they are metabolized in the body no further rulemaking has occurred but the court of appeals called for the views of the fda in its resulting amicus brief the agency took the position that total sugars as defined in that regulation include all monosaccharides including allulose the such as parenthetical at the end of the regulation was merely a list of non exhaustive illustrative examples and not as the district court found a limitation on sugars based on the physiological characteristics that the listed sub stances shared and an enforcement position isn t an interpretation of a regulation the court of appeals found this persuasive there s no dispute that allulose is a monosaccharide because the definition includes every monosaccharide and the following parenthetical is merely a list of examples allulose is a sugar the surplusage and noscitur a sociis canons didn t change anything chobani argued that a sugar needed the same nutritional characteristics as glucose fructose lactose and sucrose the surplusage canon suggested that the such as parenthetical should have some meaning but redundancy is common in the law and such as doesn t always mean of the same kind it can merely introduce examples of a class the fda defined a class by way of chemistry it reinforced that definition through examples all of which share the same chemical structure there s no need to derive a definition from the list of examples since they merely illustrate the definition that already appears nor did chobani argue that a definition of sugars that includes all monosaccharides will lead to absurd results and in defining total sugars the fda specifically invoked the language of chemistry which means decisions favoring common parlance meanings aren t persuasive either the fda could have defined total sugars based on physiological factors rather than chemical makeup but it didn t do so the regulation wasn t ambiguous so there was no reason to defer to the fda s enforcement guidance which wasn t an official position anyway what about the marketing permit chobani secured from the fda t he fact that one sovereign the united states indicated that it would not enforce its labeling requirements with respect to allulose should not have led chobani to believe that the sta...
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