Short opinion finding that Rule 9(b) applies to Lanham Act
false advertising claims (here, counterclaims), because they sound in
fraud. Fraud might not be an essential
element of the statutory violation, but if the claimant chooses to allege
fraudulent conduct, then the claim sounds in fraud. “By asserting that plaintiff unfairly
obtained business by intentionally misleading customers about the
characteristics of its product, defendant made allegations that reach beyond a
mere unintentional misrepresentation. Instead, defendant asserted that
plaintiff’s misrepresentations were made knowingly, satisfying the scienter
element of fraud.” Thus, Rule 9(b) applied, and the counterclaims were dismissed
because they failed to state when the alleged misrepresentations were made;
where the misrepresentations were made; or who relied on them. (Note: that last, actual reliance, is not required
for literal falsity under §43(a), or for infringement for that matter.)
Comment: trademark plaintiffs almost universally allege
intentional infringement. How often do
we see Rule 9(b) dismissals for this reason?
Trademark is literally special pleading!
Posts
3 comments:
What do you mean "Trademark is literally special pleading!"?
Because courts let plaintiffs plead trademark claims with less specificity than they'd require for any other kind of false advertising claim; they don't treat trademark infringement claims as fraud claims for purposes of Rule 9(b).
Thanks for responding! Would be nice if plaintiffs had to think a little harder about pleading exceptional case (since Rule 9(b) would apply if they did). I feel like Rule 8 is usually applied even to 1125(a)(1)(B) false advertising claims, but maybe more courts are applying Rule 9(b) than I'm aware of.
Post a Comment