Monday, January 30, 2006

No publisher liability for false specialization claims

American Association of Orthodontists v. Yellow Book Usa, Inc., --- F.3d ----, 2006 WL 162979 (8th Cir.)

The American Association of Orthodontists (AAO) is a trade association for, unsurprisingly, orthodontists, who have specialized training beyond that of general dentists. The defendant publishes yellow pages directories that list, by category, businesses and professionals who pay to be listed. Its Missouri publications included separate listings for “Dentists,” “Dentists-Orthodontists,” and “Orthodontists (Straightening-Braces).” The AAO sued for violation of the Lanham Act because Yellow Book listed general dentists under the last two categories, which allegedly was likely to confuse and deceive consumers about the qualifications and expertise of the listed dentists. (The AAO alleged that it was, among other things, a violation of the American Dental Association’s Code of Professional Conduct for a general dentist to claim a specialty without the requisite education.)

The court of appeals ruled on two independent grounds. First, dentistry is a heavily regulated profession of which orthodontics is a subspecialty. If it is not illegal in Missouri for a general dentist to perform orthodontic services, the court reasoned, finding a Lanham Act violation in this case would usurp the function of the state licensing authorities.

This seems to be missing a step – it could be unlawful for a general dentist to advertise a speciality without additional qualifications even if s/he could perform specialized services. Nonetheless, if it is legal for a general dentist to claim to be an orthodontist even if s/he hasn’t completed extra training, then finding for the AAO might conflict with the state regulatory scheme. Later in the opinion, the court refers to the lack of a state-law ban on “general dentists holding themselves out as orthodontists,” which seems to be the right standard.

Even so, it would be nice to know more about the state regulatory scheme. Though there may not be a formal requirement for further training before dentists can advertise as orthodontists, if the AAO could prove consumer deception, the state's policy might not be in conflict -- only if the state deliberately decided to allow broad dentist advertising would there be a problem. (Query whether the Lanham Act would preempt any such state rule; given the traditional state role in regulating medicine, probably not, but a state policy allowing total freedom of advertising in other fields might well be preempted.)

Even had the complaint stated a claim, the court ruled, AAO lacked standing. From a trademark perspective, even assuming that consumers would mistake a listing under “Dentists-Orthodontists” as a false endorsement or association with the AAO, the relief sought -- an injunction against listing general dentists under that category – would not redress the injury alleged, which was public confusion over whether the AAO endorses the Yellow Book listings.

Moreover, despite the broad language of §1125, most circuits have long held that non-trademark false advertising claims are limited to competitors. Even under a more expansive, antitrust-like test, Yellow Book provides only an advertising medium to individual dentists, who would be the proper defendants. As the court notes, though, this isn’t exactly a point about standing.

I'm a little surprised that there was no discusion of 15 U.S.C. § 1114(2), which provides for injunction-only remedies against publishers who innocently print matter in violation of § 43(a). Though that limitation is mostly targeted towards trademark infringement, it clearly contemplates other violations of § 43(a) such as false advertising; it limits “the remedies given to the owner of a right infringed under this Act or to a person bringing an action under section 43(a)” (emphasis added), suggesting that you don’t need a trademark “right” for this section to apply. This provision implies that a false advertising cause of action against a publisher would exist, though damages would be unavailable.

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