Tuesday, May 22, 2012

Review: False Advertising and the Lanham Act

Thomas M. Williams, False Advertising and the Lanham Act: Litigating Section 43(a)(1)(B): 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.).

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