Trade name infringement as false advertising

Hunters Friend Resort, Inc. v. Branson Tourism Center, L.L.C., 2009 WL 2450281 (W.D. Mo.)

Hunter’s Friend (apostrophe present in text, but not in caption) sued defendants for copyright infringement, trademark infringement, false advertising, and related torts under state and federal law. The parties rent and/or sell condos in Branson, Missouri, and operate competing websites. Plaintiffs alleged that defendants copied pictures of properties and descriptive texts from plaintiffs’ sites and put them on defendants’ own sites, replacing plaintiffs’ contact information with defendants’ and misleading consumers. Allegedly, when plaintiffs’ representatives called defendants and asked about plaintiffs’ properties, defendants told them that defendants couldn’t make reservations for those properties, or that plaintiffs didn’t have any properties available, and then directed them to defendants’ own properties.

The copyright claim was dismissed because plaintiffs failed to allege they had a registration for the photos and text.

Defendants argued that they didn’t mislead consumers because their representative told a person posing as an interested customer that “Branson Tourism Center doesn't make reservations for Treehouse Condo Rental but they do have a beautiful place just across the road with the same great location.” But plaintiffs also alleged that another representative said that plaintiffs didn’t have any units available. Anyway, the allegation of copying pictures and text, but changing the contact information, states a claim under §43(a)(1)(A). (I sense a Dastar problem with framing the issue that way, but don’t disagree that a claim has been stated.)

Plaintiffs also alleged a violation of §43(a)(1)(B). Defendants argued that they told potential customers they couldn’t make reservations for plaintiffs’ properties, but plaintiffs nonetheless alleged a misrepresentation of the nature and characteristics of both parties’ services: defendants allegedly falsely directed plaintiffs’ potential customers to contact defendants.

Here we have trade name infringement as false advertising. Query whether (a)(1)(B) adds any bite, given the usually greater ease of success for trademark infringement claims. Perhaps if we consider the pictures/descriptions on the website to be false statements instead of misleading ones (false by necessary implication?), a (a)(1)(B) violation would actually be easier to make out than a multifactor confusion analysis. But probably not, since the same considerations leading us to sort this into the “falsity” box would also point heavily in the plaintiff’s direction in the confusion analysis.