False Advertising: Lanham Act
Lanham Act - Section 43(a): Full Text
The following is the full text of Section 43(a) (Section 1125 (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 past actions from various federal courts involving false advertising and the Lanham Act:
SEVENTH CIRCUIT UPHOLDS SUMMARY JUDGMENT AGAINST LITTLE LEAGUE COACH ALLEGEDLY PORTRAYED IN MOVIE "HARDBALL"
Plaintiff Robert Muzikowski founded a Little League Baseball league in inner-city Chicago. An assistant coach for one of the teams in that league wrote a non-fiction book entitled "Hardball: A Season in the Projects." Defendant Paramount Pictures Corp. acquired the rights to the book and released a 2001 adaptation film entitled "Hardball." Believing that the movie portrayed him in a defamatory light, Plaintiff sued Paramount for defamation and false light invasion of privacy under Illinois law. Plaintiff later amended his complaint to include additional claims for, among other things, false advertising.
While there were a number of similarities between Plaintiff and Little League coach portrayed in the film, the district court granted summary judgment to Paramount, finding Plaintiff could not sustain a claim under Illinois substantive law. On appeal, the Seventh Circuit upheld the district court's dismissal of Plaintiff's defamation claims, finding that the movie's portrayal was susceptible of "innocent construction."
The Seventh Circuit also upheld the district court's summary judgment ruling against Plaintiff on his Lanham Act false advertising claims, finding that:
- (1) Paramount's statement "inspired by a true story" was literally true; and
- (2) Plaintiff had failed to prove that a substantial segment of the film's viewers believed that the movie was a portrayal of Plaintiff's life.
(Muzikowski v. Paramount Pictures Corp., Case Nos. 05-3004 and 05-3005, United States Court of Appeals for the Seventh Circuit, 2007 U.S. App. LEXIS 2784, Feb. 8, 2007.)
TENTH CIRCUIT UPHOLDS CONTEMPT ORDER ENTERED TO ENFORCE SETTLEMENT AGREEMENT IN PREVIOUS LANHAM ACT CASE
Plaintiff filed a motion to hold Defendant in contempt of an agreed injunction that was entered in a prior Lanham Act case between the parties. Plaintiff, a telephone directory publisher, had previously sued Defendant, a competing publisher, for Lanham Act violations and deceptive trade practices. The parties entered into a settlement agreement that barred Defendants from committing any further deceptive practices. The agreement provided that an aggrieved party could bring violations of the order to the attention of the court, upon ten days' written notice to the other side.
After Defendant violated a provision of the settlement agreement, Plaintiff moved for contempt without giving written notice to Defendant. Defendant filed a motion to dismiss the matter, arguing that Plaintiff's failure to give the required written notice deprived the district court of subject matter jurisdiction. The district court disagreed, and entered the requested order of contempt. On appeal, the Tenth Circuit held that the district court's jurisdiction to enforce its own injunction order stood independent of any procedural mechanisms to which the parties might have agreed.
(Phone Directories Co., Inc. v. Clark, Case No. 05-4257, United States Court of Appeals for the Tenth Circuit, 2006 U.S. App. LEXIS 31525, December 20, 2006.)
FEDERAL MAGISTRATE JUDGE RECOMMENDS DISMISSAL OF INVASION OF PRIVACY CLAIMS
Plaintiffs sued a bank, which in turn served a subpoena on American Express Travel Related Services Company, Inc., requesting information about Plaintiffs' accounts. Plaintiffs initially moved to quash the subpoena, but later withdrew the motion, and American Express complied with the subpoena. Plaintiffs then sued American Express in federal district court for violations of their privacy rights under the U.S. and California Constitutions, seeking $200,000, unspecified statutory and punitive damages, and a permanent junction barring American Express from disclosing their financial records to third parties. Plaintiffs later amended their complaint to claim federal question jurisdiction based on the alleged violation of their federal constitutional right to privacy. American Express moved to dismiss all of Plaintiffs' claims.
In recommending that the district court grant the motion to dismiss, the magistrate judge determined that the federal courts had no jurisdiction over the matter. Specifically, the magistrate opined that federal question jurisdiction was absent because the right to privacy in the U.S. Constitution does not protect against acts of private infringement. The California Constitution, the court noted, does not confer federal question jurisdiction upon a U.S. court. Although Plaintiffs had requested leave to file a second amended complaint alleging Lanham Act and "FTC" violations, the court denied the motion, finding that Plaintiffs had no colorable claims for deceptive advertising or deception of consumers under the Lanham Act or the Federal Trade Commission Act.
(Banga v. American Express Cards, No. CIV S-06-0880 GEB GGH PS, United States District Court for the Eastern District of California, 2006 U.S. Dist. LEXIS 92164, December 20, 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)of the Lanham Act Defined. Wikipedia points out 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."
- Additional News Briefs Discussing Section 43(a). Here are a number of additional news briefs discussing Section 43(a)of the Lanham Act.
- Lanham Trademark Act Index. This 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.
- Lanham Act - False Advertising Article. 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.
- 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.
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