Is it "Advertising"? The Threshold Issue in Lanham Act False Advertising Cases

A recent Florida federal case illustrates that Lanham Act false advertising defendants can win summary judgment on the threshold question of whether a communication to a customer qualifies as "commercial advertising" under the Lanham Act. In Suntree Technologies, Inc. v. Ecosense Intern., Inc., the parties sold competing "baffle boxes," which are "stormwater treatment structures that remove organic debris, trash, oil and other pollutants from stormwater before the stormwater reaches lakes, rivers and streams." The baffle boxes are sold to cities and counties through a government contracting process. The plaintiff challenged defendant's product brochure and maintenance presentation provided to government purchasers as "false advertising," including because the materials contained pictures of the plaintiff's product and falsely suggested that the defendant's product had the same features and performance as the plaintiff's product. The case law was on the plaintiff's side in the sense that, although the Lanham Act is limited to "commercial advertising or promotion," this definition is extremely broad and applies to: (1) non-traditional advertising such as emails, slide presentations and brochures; and (2) to communications made solely to business and government purchasers (which the general public never sees). Thus, the Lanham Act is not limited to advertising in the classic sense. Even a single letter or slide presentation to a business or government purchaser — as long as it touts a product or service — can be actionable under the Lanham Act as false "advertising." A key requirement, however, is that the plaintiff prove the statement was made to influence customers to buy defendant's goods or services. In Suntree, the court found at least two reasons that the product brochure at issue was not "advertising": "the purpose of the maintenance presentation was not to influence consumers to purchase EcoSense's product but rather to provide training to those who had already done so"; and plaintiff "failed to present any evidence relating to the brochure's dissemination, and, due to the sophistication of the consumers, it is unlikely that a simple product brochure could influence them to purchase EcoSense's baffle boxes." The court also rejected Plaintiff's related trademark claims holding that the Plaintiff failed to prove likelihood of confusion. Although the Lanham Act's definition of "commercial advertising and promotion" is broad, litigants should not take this threshold issue for granted. As indicated by the Suntree case, to survive summary judgment, a plaintiff will have to affirmatively prove that the nature, purpose and use of the challenged statement qualifies it as "advertising" under the Lanham Act — defendants should hold them to this burden. – Randy Miller

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