In ruling on a motion to dismiss counterclaims brought under Section 43(a) of the Lanham Act, the District Court of Oregon ruled that statements made by a corporate agent to a journalist may be actionable.

In Skedko, Inc. v. ARC Products, LLC, the defendant counterclaimed for false advertising.  Both plaintiff and defendant manufacture and sell evacuation devices.  Plaintiff’s device is the Sked® Rescue System, “(‘Sked’), an evacuation sled system designed to quickly evacuate wounded people from confined spaces, from high angles, in technical rescues, and in traditional land-based rescues.”  Defendant’s device is the Vertical Lift Rescue Sled, “which is an evacuation device that provides quick transport of a nonambulatory individual in a difficult rescue situation or a confined space.”

Among the advertising that defendant challenged through its counterclaims was a statement by plaintiff’s executive and agent that appeared in the article “Cleared for Takeoff” for the publication Military Medical & Veterans Affairs Forum.  Skedko’s agent told the author of “Cleared for Takeoff” that “an individual person can have an injured person ready for transport in a Sked sled in a mere 20 seconds and that [the agent] could perform this ‘routinely.’”  Defendant alleged that this statement was false because “in reality it takes significantly longer for an injured person to be loaded into and ready for transport into a Sked sled.”

The Lanham Act proscribes misrepresentations of goods or services in “commercial advertising or promotion.”  Therefore, in its motion to dismiss, Skedko argued that the statement by its executive was not actionable commercial speech because the journalist’s article was clearly not commercial speech.  Rather, Skedko argued, the journalist’s article was protected under the First Amendment.

The court concluded that the Skedko executive’s statement to the author of “Cleared for Takeoff” was commercial speech.  The court explained that “[w]hile the author of ‘Cleared for Takeoff’ may have intended to inform the public about various advances in aerial transport medicine, defendant did not bring a claim against the author.  Rather, defendant takes issue only with the statements of [Skedko’s agent], as quoted in the article.”  The Court went on to explain that those statements “highlight the newest features of the Sked sled and explain the added benefits that those new features provide to Skedko customers.”  The readership of the magazine Military Medical & Veterans Affairs Forum constituted plaintiff’s primary customer.  “Cleared for Takeoff” also appeared in close proximity to a paid Skedko advertisement.  Therefore, the court concluded that it could not find a purpose behind the challenged interview statement “other than to promote [Skedko’s] product to potential customers.”

This decision highlights the caution that corporate agents need to exercise in all public communications about their company’s own (or a competitor’s) products or services.