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Advertising lawyers, including in-house counsel and outside counsel, need to comply with laws involving false, unfair and deceptive acts.

 

 

 

 

False Advertising: Lanham Act -
Statute, News Briefs

 

 

 

Section 43(a) of the Lanham Act: Full Text

 

NOTE: The following is the full text of Section 43(a) of the Lanham Act:

 

"Section 1125. False designations of origin, false descriptions, and dilution forbidden

 

(a) Civil action

 

(1) Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which—

 

(A) is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person, or

 

(B) in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person’s goods, services, or commercial activities, shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act.

 

(2) As used in this subsection, the term “any person” includes any State, instrumentality of a State or employee of a State or instrumentality of a State acting in his or her official capacity. Any State, and any such instrumentality, officer, or employee, shall be subject to the provisions of this chapter in the same manner and to the same extent as any nongovernmental entity.

 

(3) In a civil action for trade dress infringement under this chapter for trade dress not registered on the principal register, the person who asserts trade dress protection has the burden of proving that the matter sought to be protected is not functional."

 


 

The following news briefs summarize recent actions from various federal courts involving false advertising and the Lanham Act:

 

FEDERAL MAGISTRATE JUDGE DENIES MOTION TO COMPEL DEPOSITIONS IN LANHAM ACT AND UNFAIR COMPETITION CASE

 

Plaintiff and Defendants were competing manufacturers of portable coordinate measuring machines used in a variety of industries. After Defendants circulated a "white paper" allegedly disparaging Plaintiff's product, Plaintiff sued Defendant for Lanham Act violations and for common law unfair competition. Defendants moved to dismiss the case, and also moved to stay discovery pending resolution of their dismissal motion.

 

The magistrate judge refused to stay discovery, holding that to do so would prevent the parties from completing discovery by the court's specified deadline. However, the court granted Defendants' motion for a protective order against temporally and substantively overbroad written discovery requests. The court also denied a motion by Plaintiff to compel the deposition of one of Defendants' employees by notice, holding that the employee was not an officer, director or managing agent of either Defendant, and, accordingly, could only be deposed as a non-party pursuant to a Rule 45 subpoena or, if outside the United States, through the procedures outlined in the Hague Convention. Finally, the court denied Plaintiff's motion to depose the Chief Executive Officer of one of the Defendant companies, finding that the CEO had no unique personal knowledge of the facts at issue in the lawsuit. The court did, however, grant Plaintiff leave to re-urge its motion at a later time, provided that Plaintiff could demonstrate that the CEO possessed unique personal knowledge regarding a fact at issue.

 

(Faro Technologies, Inc. v. Romer, Inc., Case No. 6:06-cv-13-Orl-19 KRS, United States District Court for the Middle District of Florida, 2007 U.S. Dist. LEXIS 9792, Feb. 12, 2007)

 

FEDERAL DISTRICT COURT DISMISSES LANHAM ACT AND RELATED CLAIMS AGAINST GOOGLE

 

Plaintiff sued the search engine company Google, Inc., alleging eight counts of fraud, Lanham Act violations, tortious interference, invasion of privacy, and breach of contract. Plaintiff's alleged damages consisted of approximately five dollars in lost advertising revenue due under her contract with Google's AdSense division. Defendant moved to dismiss the complaint.

 

The court granted Defendant's motion to dismiss seven of Plaintiff's eight causes of action. Specifically, the court rejected Plaintiff's Lanham Act claims, finding that Plaintiff had failed to allege that any of her customers were deceived. Instead, Plaintiff had merely claimed that she signed up with Google and lost customer goodwill as a result of Google's allegedly false statements. The court dismissed Plaintiff's fraud claims because Plaintiff had failed to meet the heightened pleading standard set by Federal Rule of Civil Procedure 9(b). Similarly, the court dismissed Plaintiff's tortious interference claim because she had failed to identify any disrupted relationship other than her contract with Defendant.

 

As for Plaintiff's claim under California Commercial Code section 2207 (which governs sale of good contracts), the court found that Plaintiff had not purchased any goods from Defendant, and therefore could not maintain a cause of action. The court also dismissed Plaintiff's breach of contract claim because she did not plead that she had performed under the contract. Indeed, Plaintiff had clicked on her own advertisements, a practice that was prohibited by her contract with Google. Finally, the court dismissed Plaintiff's claims for unlawful interception of electronic communications under 18 U.S.C. Section 2520 and invasion of privacy under California law, finding that the complaint did not identify any specific intercepted e-mails. The court did, however, permit Plaintiff to pursue a claim for destruction of personal property, based on her allegation that Google had deleted some of her e-mail messages. The court also granted Plaintiff leave to amend her complaint to elaborate on her Lanham Act, fraud, and tortious interference causes of action.

 

(Bradley v. Google, Inc., No. C 06-05289 WHA, United States District Court for the Northern District of California, 2006 U.S. Dist. LEXIS 94455, December 22, 2006.)

 

(Source: Advertising Compliance Service, Tab #2, General Articles, Article #568, Roundup of Recent Ad Compliance Actions, by Katherine D. Jordan, Esq.)

 

 

 

Section 43(a) - Web Links

  • Section 43(a)of the Lanham Act - Definition. Wikipedia notes that, "Section 43(a)(1)(B) is also often utilized in law when false or misleading statements are alleged to have hurt a business. To be proven in court a claimant must satisfy 3 principles: There was a false or misleading statement made, the statement was used in commercial advertising or promotion, and the statement creates a likelihood of harm to the plaintiff."
  • News Briefs Discussing Section 43(a). Here are several additional news briefs discussing the Lanham Act's Section 43(a).
  • Article Discusses Lanham Act - False Advertising. Excellent article entitled, "Lanham Act Also Applies to False Advertising Claims".
  • Lanham Trademark Act. The Lanham Trademark Act - 15 USC §§ 1114-27 - from the 'Lectric Law Library's stacks.
  • Lanham Trademark Act Index. Index contains links to each section of the Lanham Act (as found in Title 15 of the U.S. Code) and was last updated in October 2005.
  • Comparative Advertising and Trademark Cases. Lists comparative advertising and trademark cases brought or defended by this major law firm under Section 43(a) of the Lanham Act.
  • Lanham Act Expert Witnesses. Experts, legal consultants, forensic experts and litigation support services nationwide for Lanham Act.

 

Linking to the Advertising Law Resource Center Web site:

 

You are welcome and encouraged to link from your Web site to the Advertising Law Resource Center Web site. To link to this specific page, feel free to use your own accurate description or simply copy the following code:

 

<a href="http://www.lawpublish.com/false-advertising-lanham-act2.html">False Advertising: Lanham Act - Federal Court Cases</a> - from articles which appeared in the advertising law newsletter/reference service <a href="http://www.lawpublish.com/about2.html">Advertising Compliance Service</a>.

 

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JLCom Publishing Co., L.L.C. is the publisher of Advertising Compliance Service™. For over 30 years,Advertising Compliance Service™ has been the authoritative - and comprehensive - source of information for advertising law practitioners, advertisers and advertising agencies--and their attorneys--in the advertising law area. Both in-house counsel and outside counsel routinely rely on Advertising Compliance Service™. One of the 27 advertising law-related topics that are regularly covered by this newsletter/reference service focuses on laws pertaining to "false, unfair, deceptive" advertising, including Section 43(a) of the Lanham Act.

 

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