Wednesday, March 10, 2010

More on press releases as subject to the Lanham Act

Star-Brite Distributing, Inc. v. Kop-Coat, Inc., 2010 WL 750353 (S.D. Fla.)

What began as a traditional advertising dispute, resulting in an injunction against certain Kop-Coat ads for its ethanol gas treatment, has now evolved into battles over press releases. The key issue was whether Star-Brite’s press release constituted “commercial advertising and promotion” subject to the Lanham Act; the court held that they could. The press release was commercial speech promoting ethanol fuel additives in general and attacking Star-Brite’s competitor’s product. The release was intended to influence consumers to buy one product instead of the other. Kop-Coat alleged that the press release was placed in marine industry and online trade publication websites, and thus sufficiently disseminated to retailers who buy the products.

Second, did the press release misrepresent the “nature, characteristics, or qualities” of Kop-Coat’s product, or Kop-Coat’s “commercial activities,” as also required by the Lanham Act? The press release didn’t say anything about the product, but it did allegedly misrepresent Kop-Coat’s commercial activities, specifically its ad campaign. (How does this interact with materiality, I wonder?)

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