ADVERTISEMENT



Google       

Home -> Law Blog Directory -> Consumer Law Blogs -> 43(B)log

OR PHONE (866) 635-1838 for Bankruptcy Help, (866) 635-6190 for Divorce,
(866) 635-2689 for Personal Injury or (866) 635-9402 for Criminal Defense

Find a Local Lawyer

Bankruptcy (866) 635-1838
Divorce (866) 635-6190
Personal Injury (866) 635-2689
Criminal Defense (866) 635-9402

Bookmark

Consumer Law

: 43(B)log

Trade name infringement as false advertising

By Rebecca Tushnet

ADVERTISEMENTS
Hunters Friend Resort, Inc. v. Branson Tourism Center, L.L.C., 2009 WL 2450281 (W.D. Mo.)

Hunter?s Friend (apostrophe present in text, but not in caption) sued defendants for copyright infringement, trademark infringement, false advertising, and related torts under state and federal law. The parties rent and/or sell condos in Branson, Missouri, and operate competing websites. Plaintiffs alleged that defendants copied pictures of properties and descriptive texts from plaintiffs? sites and put them on defendants? own sites, replacing plaintiffs? contact information with defendants? and misleading consumers. Allegedly, when plaintiffs? representatives called defendants and asked about plaintiffs? properties, defendants told them that defendants couldn?t make reservations for those properties, or that plaintiffs didn?t have any properties available, and then directed them to defendants? own properties.

The copyright claim was dismissed because plaintiffs failed to allege they had a registration for the photos and text.

Defendants argued that they didn?t mislead consumers because their representative told a person posing as an interested customer that ?Branson Tourism Center doesn't make reservations for Treehouse Condo Rental but they do have a beautiful place just across the road with the same great location.? But plaintiffs also alleged that another representative said that plaintiffs didn?t have any units available. Anyway, the allegation of copying pictures and text, but changing the contact information, states a claim under §43(a)(1)(A). (I sense a Dastar problem with framing the issue that way, but don?t disagree that a claim has been stated.)

Plaintiffs also alleged a violation of §43(a)(1)(B). Defendants argued that they told potential customers they couldn?t make reservations for plaintiffs? properties, but plaintiffs nonetheless alleged a misrepresentation of the nature and characteristics of both parties? services: defendants allegedly falsely directed plaintiffs? potential customers to contact defendants.

Here we have trade name infringement as false advertising. Query whether (a)(1)(B) adds any bite, given the usually greater ease of success for trademark infringement claims. Perhaps if we consider the pictures/descriptions on the website to be false statements instead of misleading ones (false by necessary implication?), a (a)(1)(B) violation would actually be easier to make out than a multifactor confusion analysis. But probably not, since the same considerations leading us to sort this into the ?falsity? box would also point heavily in the plaintiff?s direction in the confusion analysis.

Full post as published by 43(B)log on August 18, 2009 (boomark / email).

Bloggers, promote your law blog by nominating your blog for inclusion in USLaw.com's Law Blog Directory and RSS Reader. Benefits described.
Related Law Articles

Lawsuits and Settlements

Related Searches

























































































































US Law
#1 Online Legal Resource













Your Blog Subscriptions
Subscribe to blogs

10,000+ Law Job Listings
Lawyer . Police . Paralegal . Etc
Earn a law-related degree
Are you the author of this blog? Adding USLaw.com to your Blogroll increases relevance. You qualify to display a USLaw Network badge.
Suggest changes to this blog's description or nominate another for inclusion. Register for updates.


Practice Area
Zip Code:

Contact a Lawyer Now!






0.0134 secs (new cache)