Friday, February 15, 2019

No Lanham Act liability for failure to correct another's misstatement

GeoMetWatch Corp. v. Hall, No. 1:14-cv-60, 2019 WL 578917 (D. Utah Feb. 12, 2019)

Business dispute; of interest here, GeoMet asserted false advertising against defendant AWSF because of two statements about Tempus, with which it was working.  However, both statements about Tempus were made by Tempus, and thus couldn’t be the basis of Lanham Act liability for AWSF.  GeoMet argued that “AWSF assisted Hall in making misleading statements about Tempus[,]” and that “AWSF did not correct, and continued to promote, the Hall Defendants’ misleading representations that they were replacing GeoMetWatch.” The statements were made in emails sent by Tempus employees that AWSF representatives received (and thus knew of).  The court stated that it had seen “no authority for the novel proposition that the Lanham Act imposes liability on an entity that has in some way assisted another in making false or misleading statements of fact.”  Stated this way, it’s too broad: secondary liability is definitely a thing in Lanham Act false advertising cases.  But it seems reasonable to doubt the idea that the Lanham Act “imposes a duty on third parties to correct another’s false or misleading representation of fact,” at least outside of cases in which the third party itself makes some contribution to the misleadingness.  So, merely receiving the emails couldn’t trigger Lanham Act liability.

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