misleadingness

I like how the court thinks; I am increasingly of the opinion that the multifactor confusion test, though it has its weaknesses, is superior to the rigid and ultimately insupportable falsity/misleadingness distinction.

Archive 2009-06-01 Rebecca Tushnet 2009

Key concepts to take away: Falsity is not the same as misleadingness.

Archive 2009-03-01 Rebecca Tushnet 2009

Because there is nothing natural about the division between literal falsity and misleadingness, courts have been driven to create hybrids, like falsity by necessary implication, or rely on doctrines like materiality and puffery to adjust the results that basic falsity doctrine seem to require.

Archive 2009-06-01 Rebecca Tushnet 2009

Unless you get rid of the Lanham Act and the FTC, kicking Kasky out of the running still leaves Nike subject to a plain falsity/misleadingness standard in its ads.

Archive 2009-04-01 Rebecca Tushnet 2009

For green marketing claims where consumers have no preexisting understanding of what the claim means or how it relates to other green claims, that might mean that only a regulatory standard, or maybe an industry standard, would be enough to set a baseline against which claims of falsity and misleadingness could be made.

Archive 2009-03-01 Rebecca Tushnet 2009

By contrast, Lanham Act jurisprudence is much more rigid, using doctrinal categories of falsity and misleadingness to reject or require consumer evidence — and the stress of that rigidity, compared to the more flexible reality judges sense is out there, has led to doctrinal innovations like the concept of “falsity by necessary implication,” as well as increased reliance on judgments about puffery and materiality.

Archive 2009-06-01 Rebecca Tushnet 2009

The court further concluded that the misleadingness was material.

Misleading checks work -- until the FTC catches you Rebecca Tushnet 2006

From what I can see, Ohio law should have offered defendant a potential for success under a theory of misleadingness – always depending, of course, on the invalidation of the patents in the same suit.

Patent claims as the basis for false advertising claims -- or not Rebecca Tushnet 2006

Google case; the judge's comments about misleadingness hint that the false advertising claim may survive.

Kinderstart v. Google Rebecca Tushnet 2006

Shalala said the FDA could regulate commercial speech with empirical evidence of misleadingness.

Another ruling Kevin Trudeau doesn't want you to know about Rebecca Tushnet 2006