False Advertising and the Lanham Act
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Section 43 of the Lanham Act is an invaluable tool for intellectual property and commercial litigators. It includes causes of action for trademark infringement-type ""passing off"" claims, false advertising, trademark dilution, and domain-name cyberpiracy. It is the cornerstone for civil litigants seeking redress for competition-related torts in federal courts. However, Section 43(a) is not a general catch-all for commercial grievances, and is arguably the most misinterpreted and misapplied subsection in the Lanham Act, despite having an extensive body of case law delineating specific causes of action and proofs. Practitioners are well-advised to grasp its nuances before proceeding under the banner of ""unfair competition"".
In False Advertising and the Lanham Act Thomas Williams addresses false advertising claims under Section 43(a)(1)(B) of the Lanham Act. The product focuses on false advertising claims under Section 43(a), and specifically, Section 43(a)(1)(B). It connects the dots in false advertising precedent, from standing to sue through monetary relief, and includes analysis of key cases where courts have developed essential analytical tools for fleshing out the sparse statutory language.
This 2022 Edition contains up-to-date analysis of the courts’ application of several recent Supreme Court decisions significantly impacting Lanham Act practice. This includes the Court’s Lexmark decision, which has quietly altered multiple areas of false advertising jurisprudence, including pleadings, liability, and remedies. It also includes analysis of the Court’s rejection of “willfulness” as a prerequisite for profits disgorgement in Romag Fasteners and its Octane Fitness ruling on the “exceptional case” requirement for attorney’s fees. The 2022 edition also reviews lower courts’ applications of the POM Wonderful decision on preclusion and their efforts to strike the proper balance between commercial speech limitations and First Amendment protections. It also provides a revised analysis of the “commercial advertising or promotion” requirement relating to the scope of the Lanham Act and its applicability to online forums. As always, this edition will review the courts’ application of the multifactor liability test under Section 43(a)(1)(B), including renewed focus on the “materiality” requirement.
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Table of contents
Chapter 1 False Advertising Under Section 43(a)
Chapter 2 Standing Under Section 43(a)(1)(B)
Chapter 3 The Skill Test: Prima Facie Elements of a Section 43(a) False Advertising Claim
Chapter 4 Pleadings In Section 43(a) False Advertising Cases
Chapter 5 Defenses to Section 43(a) False Advertising Claims
Chapter 6 Injunctive Relief
Chapter 7 Monetary Relief Under the Lanham Act
Table of Statutes
Table of Cases