Federal acquisition law and regulations often require government agencies to give purchasing preference to domestic suppliers. These preferences—some of which have remained unchanged since the Eisenhower Administration—have not always been implemented consistently or effectively. That uncertain landscape may be about
Federal Common Law Governs Availability of Statutory Restitution in Diversity Suit
The Ninth Circuit held that, irrespective of a state’s own standards for equitable relief, a federal court exercising diversity jurisdiction is bound by federal common law requirements for granting the equitable remedy of restitution, including the mandate that such relief
(Mis)Interpretation of Standard Did Not Support False Advertising Liability
The Eleventh Circuit just ruled that a standard-setting-body’s interpretation of its own standards is an opinion that cannot support Lanham Act false advertising liability. Warren Technology, Inc. v. UL LLC, __ F.3d __, No. 18-14976, 2020 WL 3406585 (11th
Outlaw Labs Can’t Charge Ahead In Suit Against Rhino Sellers
Another chapter in the Outlaw Laboratories litigation drama has ended with another defeat for Outlaw.
In 2018 the FDA warned consumers that some “Rhino” products—supplements that compete with Outlaw’s own “male enhancement” supplements—were adulterated with the active ingredients found in
Government edicts doctrine precludes legislators from claiming copyright protection
In a 5-4 decision, the United States Supreme Court held in Georgia et al v. Public.Resource.Org., Inc. (No. 18-1150) (April 27, 2020) that the state of Georgia is not entitled to copyright protection for its official annotated code.
The Copyright Act grants expansive rights for “original works of authorship.” 17 U.S.C. § 102(a). Georgia claimed it was the “author” of the Georgia official annotated code (“OCGA”) and, as the author, enjoyed rights as the copyright owner of the entire work. As the copyright owner, Georgia sought to prevent Public.Resource.Org (“PRO”) from posting digital versions of the Georgia annotated code on various websites without charge and without Georgia’s consent.
Meaty Brand Messaging During a Crisis
Brand promotion may be seen as encompassing (at least) three distinct but overlapping modes:
(i) Advertising for the moment—the message is meant to drive immediate sales;
(ii) Advertising for post-sale burnishment—the message does more than sell products today, it builds
Mitigating Advertising Risks During the COVID-19 Crisis
During this time of crisis, pharmaceutical and consumer product companies along with retailers are doing their best to provide the public with products to prevent and treat COVID-19. At the same time, the FTC and FDA have announced that they
The Slants Win: SCOTUS rules “Disparaging” trademark provision unconstitutional
On June 19, 2017, the United States Supreme Court issued a much-anticipated decision, holding that the so-called “disparagement clause” of the Lanham Act is an impermissible restriction on free speech under the First Amendment. The ruling is the culmination
11th Cir. holds “skim milk” label protected by 1st Amendment
In a case with potentially significant ramifications for regulatory oversight of the labeling and advertising of foods and pharmaceuticals, the Eleventh Circuit held the First Amendment precluded the Florida Department of Agriculture’s Bureau of Dairy Industry (the “Florida Bureau”) from
Update: 2d Circuit denies split in Church & Dwight and Apotex rulings
On December 2, 2016, the United States Court of Appeals for the Second Circuit denied rehearing by the Panel and rehearing en banc. On December 5, 2016, the Court withdrew its previous opinion, which was to have been published