The United States Supreme Court paved the way today for competitors to challenge FDA-regulated food and beverage labels under the Lanham Act.  The Court’s opinion in POM Wonderful LLC v. The Coca-Cola Co. is the latest chapter in a long-running feud between POM Wonderful and Coca-Cola, which arose in 2008 when POM accused Coke of mislabeling one of its fruit juice blend products by prominently displaying the words “pomegranate blueberry” despite the product consisting mostly of less expensive apple and grape juices.  To date, Coke had successfully persuaded a California district court and the Ninth Circuit that POM’s Lanham Act claims were precluded by the Federal Food, Drug, and Cosmetic Act and attendant FDA regulations specifically addressing the labeling of fruit juice blends. 
Continue Reading Supreme Court Opens Door to Food and Beverage Label Challenges Under Lanham Act

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.”Continue Reading Not All Press Is Good Press

Katherine Heigl, a star of the television series Grey’s Anatomy and films like Knocked Up and 27 Dresses, recently made non-TMZ headlines when she sued drugstore chain Duane Reade for $6 million dollars for posting a photo of her to its Twitter and Facebook accounts, accompanied the text “Love a quick #DuaneReade run? Even @KatieHeigl can’t resist shopping #NYC’s favorite drugstore.” Here’s a copy of the Twitter post that has caused such a stir:

heigel

What’s the problem, you ask? In a time when celebrities regularly post photos of their daily lives to public Twitter accounts and selfies dominate the social media space, what’s the big deal with a company posting a paparazzi photo of a celebrity that no doubt was already available in the public domain? The problem, according to Ms. Heigl, is that Duane Reade used the photograph for its own commercial advertising without her permission, exploiting Ms. Heigl’s celebrity status for its own commercial gain.  This conduct, according to Ms. Heigl’s complaint, is a violation of the Lanham Act, her right of privacy and publicity under New York Civil Rights Law, and New York unfair competition.Continue Reading What’s in a Name? Dollars – At Least When You’re A Celebrity

We all know that constant fighting is exhausting and can cause headaches or even stomachaches.  A challenger recently brought a fight over stomachache claims brought by headache medicine makers but NAD said enough is enough in these ongoing aspirin wars.  The recent McNeil Tylenol case sheds light on NAD’s views about the scope of its

The Supreme Court of the United States of AmericaYesterday the Supreme Court issued its decision in Lexmark International, Inc. v. Static Control Components, Inc., a case that presented it with a three-way Circuit split on the issue of who has standing to bring a Lanham Act false advertising claim.  Before this decision, the law in the Third, Fifth, Eighth and Eleventh Circuits was that the plaintiff had to satisfy the five-factor test articulated in Associated General Contractors, an antitrust case.  The Seventh, Ninth and Tenth Circuits used a bright-line test, allowing plaintiffs to bring false advertising suits only against actual competitors.  The Second and Sixth Circuits adopted a “reasonable interest” test (an amici favorite) that looked to whether the plaintiff had a reasonable interest to protect and a reasonable basis for believing that interest was being impaired.

Justice Scalia wrote the opinion for a unanimous Court.  In typical Scalia style, he applied “traditional principles of statutory interpretation” to discern not “whether Congress should have authorized [the plaintiff’s] suit, but whether Congress in fact did so.”  And in another familiar move, Justice Scalia rejected all three tests applied by the Circuits in favor of his own.  In a Goldilocks moment, he found the antitrust standing test a “commendable effort” (high praise!) but “slightly off the mark,” the direct-competitor test a “distort[ion] of the statutory language,” and the reasonable interest test vague and “lend[ing] itself to widely divergent application.”  What was just right?  A test that looks to: (1) whether the plaintiff’s interests fall within the “zone of interests” protected by the Statute; and (2) whether the plaintiff’s injuries were proximately caused by the alleged violations of the Statute.

What is the significance of the opinion? 
Continue Reading Supreme Court Issues Much Awaited Decision in Lexmark Case