Dastar no bar to claims that using images of P's product is deceptive where D's product differs

Primesource Building Products, Inc. v. Lee Gp. Int’l, Inc., No. 3:19-CV-02878-X, 2020 WL 5038176 (N.D. Tex. Aug. 25, 2020)

PrimeSource alleged that Lee Group wrongly used images and product descriptions of PrimeSource’s concrete curing blanket to sell its own competing product. It brought a §43(a)(1)(B) false advertising claim, which the court agreed wasn’t barred by Dastar.

PrimeSource alleged that Lee Group used PrimeSource’s product descriptions and images, including depictions of PrimeSource’s “innovative edge overlay,” but that the descriptions and images didn’t accurately describe Lee Group’s products. This was plausibly misleading and deceptive. It was plausibly material because “claiming a technologically innovative advantage … will likely influence consumers’ decision-making.”

This was not a barred attempt to recast a copyright claim or inventorship claim as a trademark claim. No mention of copyright or inventorship would be necessary to prove the claim. This seems exactly right and consistent with the Dastar Court's suggestion that false advertising claims could still survive under appropriate circumstances.