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