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Impersonation neither infringement nor false advertising

By Rebecca Tushnet

Pitney Bowes, Inc. v. ITS Mailing Systems, Inc., 2010 WL 1005146 (E.D. Pa.)

The parties compete in the business of mailing solutions. Pitney alleged that ITS called Pitney?s customer service centers and posed as various clients in order to procure confidential account information, then used that information to solicit Pitney?s clients and undercut Pitney?s bids. ITS employees allegedly would claim to have been newly hired by a client and unable to find relevant documents, and would ask for information such as when the lease for the client?s postage meter was due to expire, the amount of lease payments, the cost of early termination of a lease, and so on. Eventually, Pitney caught on when supposedly different clients used the same phone number and the same voice.

Pitney sued for common law fraud, unfair competition, tortious interference with contractual relations, conspiracy, RICO violations, and Lanham Act violations. Here, the court dismissed the Lanham Act claims. Under §43(a)(1)(A), the trademark claims failed because Pitney couldn?t allege a sufficient ownership interest in any of the marks or names used by ITS. Even if it?s unlawful for one person to falsely represent his association with another in connection with goods or services, Pitney can?t complain because it neither uses nor owns the marks at issue. Query: could the clients maintain a trademark action? Hard to see how this could harm the trademark owner's goodwill, or how it otherwise implicates the policies of trademark.

As for §43(a)(1)(B), the problem was ?commercial advertising or promotion.? These were communications intended to obtain information about Pitney?s clients, nothing like communications designed to influence customers to buy ITS?s products; nor were the communications sufficiently disseminated to the relevant purchasing public, as required. The statements at issue were simply misrepresentations of ITS employees? true identity used to obtain confidential information. That might be actionable, but not under the Lanham Act. (Why wasn?t this misappropriation of trade secrets? It can?t just be that the clients also knew the details of the contracts, can it?)

Full post as published by 43(B)log on March 25, 2010 (boomark / email).