fake not-really-third-party reviews can be commercial advertising or promotion

Sanho Corp. v. KaiJet Tech. Int’l Ltd., No. 1:18-cv-05385-SDG, 2020 WL 4346881 (N.D. Ga. Jul. 29, 2020)

Sanho owns rights in a design patent that claims the ornamental design for a multi-function docking station colloquially known as the “HYPERDRIVE,” and a design patent “directed at the technology underlying Sanho’s HYPERDRIVE product.” [???] It sued KaiJet for misappropriation and infringement.

KaiJet US counterclaimed for, among other things, false advertising under the Lanham Act. It alleged that Sanho paid third parties— “falsely disguised as independent reviewers, not paid-for advertisement—to submit positive reviews of Sanho’s HYPERDRIVE product on various online platforms,” and “to remove negative reviews of Sanho’s product.” Sanho argued that this wasn’t “commercial advertising or promotion,” but the court disagreed, rightly without needing much analysis. That the reviews purported to come from a third party did not take them outside the scope of the Lanham Act if they did in fact come from Sanho (which of course remains to be seen).