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False advertising and the Lanham Act :…

False advertising and the Lanham Act : litigating Section 43(a)(1)(b)

by J.D. Thomas M. Williams

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Oxford sent me a review copy of this short, practice-oriented book. If Lanham Act cases are core elements of your practice, this book is not for you, but it might be a useful reference for in-house counsel who encounter Lanham Act cases on occasion. I have only two substantive quibbles (and they go to the fact that this is very much a “this is what the cases say” book): (1) Williams says “1+1=many” is an example of an ambiguous claim whereas “1+1=3” is false; absent further context, I don’t see how the former is any less false. (2) Williams, consistent with what many courts say, characterizes Conte Bros. as a test that expands standing beyond the "competitors/competitive interest" rules of other circuits. I think if you ran the numbers on this you'd find that courts actually applying Conte Bros. are at least equally likely to deny standing to competitors than to grant it to noncompetitors, as in Phoenix of Broward; the prospect of expanded standing is largely illusory. Anyway, the chapters provide overviews of important procedural matters like prudential standing, pleading under Iqbal/Twombly, injunctions after eBay/Winter, etc., as well as the substantive elements of a Lanham Act false advertising claim and some discussion of instances when 43(a)(1)(B) won’t work (the TM/false advertising line, Dastar, FDA preemption, etc.). ( )
  rivkat | May 22, 2012 |
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Amazon.com Product Description (ISBN 0199772584, Paperback)

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: Litigating Section 43(a)(1)(B), Thomas Williams addresses false advertising claims under Section 43(a)(1)(B) of the Lanham Act. The book covers established precedent and Section 43(a) false advertising case law, including key decisions where courts have developed essential analytical tools to flesh out sparse statutory language.

The book is organized by topic. Chapter One describes actionable claims under Section 43(a)(1)(B), and includes an analysis of the Supreme Court's Dastar opinion, which sets important boundaries for Section 43(a) claims. Chapter Two identifies various tests for Section 43(a)(1)(B) standing, including the circuit split on whether antitrust-based standing rules are applicable to false advertising claims. Chapter Three analyzes each of the requisite Skil factors for establishing a false advertising claim. Chapter Four addresses Section 43(a)(1)(B) pleadings, including the impact of the Supreme Court's Twombly and Iqbal decisions on notice pleading rules. Chapter Five examines defenses to false advertising claims. Chapter Six reviews injunctive relief requirements and Chapter Seven outlines monetary relief available to prevailing parties.

(retrieved from Amazon Thu, 12 Mar 2015 18:12:40 -0400)

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