As we previously reported here on March 25, 2014 the United States Supreme Court issued its much-anticipated decision in Lexmark Int’l Inc. v. Static Control Components, Inc. The decision resolved a three-way Circuit split, rejected the test in the Seventh, Ninth and Tenth Circuits that the plaintiff and defendant had to be direct competitors, and articulated a new test for standing to bring a Lanham Act false advertising claim – a plaintiff must be in the “zone of interest” and must have injuries proximately caused by the defendant’s false advertising.
The other recent landmark Supreme Court decision in this area is of course POM Wonderful LLC v. Coca-Cola Co., which we also previously reported on here. That case held that competitors could bring suits under the Lanham Act challenging food and beverage labels that were regulated by the Federal, Food, Drug, and Cosmetic Act (“FDCA”) and complied with those regulations—in other words, the FDCA does not preclude claims under the Lanham Act, at least in the area of food and beverage labeling.
Lower courts are already recognizing that Lexmark and POM Wonderful have broadened the scope of Lanham Act litigation between competitors, and in fact are applying Lexmark and POM Wonderful beyond the realm of false advertising.
For example, in late June, the Massachusetts district court in Ahmed v. Hosting.com applied the Lexmark standing test to a trademark infringement claim, noting that the Supreme Court in Lexmark “may have supplanted the reasonable interest test” that the First Circuit previously applied to trademark infringement plaintiffs. The plaintiff in Ahmed alleged “some proprietary interest” in certain trademarks and claimed that the defendants were responsible for the infringing use of those trademarks by John Doe defendants. Although the Court ultimately found the plaintiff’s allegations of interest to be insufficient, it is worth watching to see if and how the courts apply Lexmark to other claims under the Lanham Act.
Similarly, courts may be applying POM Wonderful even beyond the specific holding of that case, which was arguably limited to food and beverage labels. In POM Wonderful, the Court made a point of repeating that the holding applied to food and beverage labels regulated by the FDCA, implying that other products regulated by that statute might be excluded. For example, the Court noted that the FDA has a less extensive role in regulating food than in regulating drugs, which could be a justification for distinguishing food and beverage from other industries affected by the FDCA.
An open question is whether courts will apply the POM Wonderful holding to cases beyond food and beverage labeling. In POM Wonderful, the Court made a point of repeating that the holding applied to food and beverage labels regulated by the FDCA, implying that other products regulated by that statute might be excluded. The Court specifically noted that the FDA has a less extensive role in regulating food than in regulating drugs, which could be a justification for distinguishing food and beverage from other industries regulated by the FDCA.
That question may be answered by cases such as the Church & Dwight Co. Inc. case, which is pending in the Southern District of New York and involves pregnancy tests, which are regulated as medical devices under the FDCA (and definitely are not food or beverages…).
In that case, Church & Dwight sued a competitor alleging that the labeling for its pregnancy test was misleading. Though the POM Wonderful decision was expected any day, Judge Nathan engaged in a very lengthy and thorough analysis of the FDCA/Lanham Act preclusion landscape, concluding that she would deny a motion to dismiss Church & Dwight’s claims, and reserve further determinations on whether the Lanham Act claims were precluded until after the POM Wonderful decision was issued. It will be interesting to see what she decides, how other courts continue to interpret these two decisions, and whether the decisions begin to take on a life of their own.