using results from one product to tout another isn't passing off, but could be false advertising

Ortho-Tain, Inc. v. Colorado Vivos Therapeutics, Inc., 2024 WL 3925408, No. 20 C 4301 (N.D. Ill. Aug. 23, 2024)

Ortho-Tain sued defendants (including a bunch of former employees); I’ll focus only on the Lanham Act claims alleging that they falsely took credit for favorable results achieved by Ortho-Tain’s orthodontic appliance products used to treat various conditions such as sleep disordered breathing. Basically, dentists working as paid presenters showcased case studies of several pediatric patients who had achieved favorable results using Ortho-Tain’s orthodontic appliances. Defendant Vivos sponsored similar presentations, as well as a “parent webinar,” using the same exact case studies. The slides displayed the name “Vivos” and the presenters attributed the favorable results to Vivos’ products, not Ortho-Tain.

This could not be brought as a §43(a)(1)(A) claim because of Dastar. There was neither forward nor reverse passing off of the devices themselves, only of the results: “the connection between the favorable results and appliances is an intangible idea or concept.” It wasn’t about the source of the tangible good sold in the marketplace.

But (a)(1)(B) also exists! The presentations were plausibly “commercial advertising or promotion” even if described as “seminars” and “continuing education courses.” The Seventh Circuit has said that face to face communication isn’t “commercial advertising or promotion” [though query whether that makes any sense if there’s a repeated script]. It sufficed at the pleading stage for Ortho-Tain to allege that the Vivos “course” was presented via online broadcast and live to in-person attendees on at least 26 occasions; another event was a multi-date online recorded presentation that thousands of medical professionals registered for; and the parent webinar was made available online.

And Ortho-Tain plausibly alleged falsity, or at least misleadingness. “If not explicit, the clear inference to be drawn by attendees was that the case studies showed results achieved by Vivos’ products.” In addition, and more controversially, Vivos statements about creating “revolutionary technology” and the “first-ever hope for a lasting solution to the problem of sleep apnea” were not “mere puffery.” “In the context of a scientific field made of up highly educated individuals, it is reasonable to infer at the pleading stage that ‘revolutionary’ and ‘first-ever’ carry specific meanings as to the novel nature or method of the appliance being described.”