False Advertising and the Lanham Act

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 2020 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 relating to injury and proximate cause, its Octane Fitness decision on attorney’s fees, its POM Wonderful decision on preclusion, as well as eBay/Winter’s role in injunctive relief. The 2020 Edition 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. Recent decisions relating to defenses such as puffery and preclusion by other statutes or regulations are also explored.