Plaintiff alleged patent, false advertising, unfair competition, and unjust enrichment claims. The Lanham Act false advertising claim is based on defendant’s use of a pest control system called “Tubes in the Wall.” (Insert obligatory Snakes on a Plane reference here.) Plaintiff alleges that defendant knowingly or recklessly made material false or misleading statements about its system that deceived or have the tendency to deceive a substantial segment of the audience. Defendant argued that plaintiff failed to state a claim, or in the alternative failed to plead with the necessary particularity.
The court agreed that, even under FRCP 8(a)’s liberal standard, merely reciting the elements of the cause of action without identifying allegedly false claims was not enough to enable the defendant to prepare an adequate responsive pleading or Rule 12(b) motion. Without knowing the statements plaintiff claims were false, defendant can’t argue truth, or puffery, or anything else.
The court went on to join what in my count is the minority and hold that plaintiff also had to satisfy Rule 9(b)’s particularity requirements, because its Lanham Act and unfair competition claims were essentially fraud claims. Given that a plaintiff can succeed under the Lanham Act without showing intent, whether the claim is for trademark infringement or for another form of false advertising, I find this result odd, but I’m far from a procedure maven.
The Lanham Act and common law portions of the complaint were dismissed with leave to amend. Claims of false patent marking survived. (Random question: Can any patent types tell me whether marking a newly manufactured item with an expired patent number violates the false marking provision?)