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Trademark and Unfair Comp.

Trademark and Unfair Comp. Boston College Law School April 1, 2009 False Designation, False Advertising. Trademark Causes of Action. Infringement Registered Trademarks False Designation of Origin (Unregistered) Dilution False Advertising Cybersquatting. False Designation of Origin.

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Trademark and Unfair Comp.

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  1. Trademark and Unfair Comp. Boston College Law School April 1, 2009 False Designation, False Advertising

  2. Trademark Causes of Action • Infringement • Registered Trademarks • False Designation of Origin (Unregistered) • Dilution • False Advertising • Cybersquatting

  3. False Designation of Origin • Lanham Act §43(a) (15 U.S.C. §1125(a)): • (a) (1) Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin … which -- • (A) is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person or with another person … shall be liable in a civil action ….

  4. Dastar v. Twentieth Century Fox

  5. Bretford v. Smith

  6. False Advertising • Lanham Act §43(a)(1) • Any person who, on or in connection with any goods or services … uses in commerce any word, term, name, symbol, or device … or any false designation of origin, false or misleading description of fact … which -- • (B) in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person’s goods, services, or commercial activities, • shall be liable in a civil action by any person who believes that he or she is likely to be damaged by such act.

  7. Smith v. Chanel • “We dare you to try to detect any difference between Chanel #5 and Ta’Ron’s 2nd Chance $25. • Order form listing “Second Chance” and underneath it, “(Chanel #5)”.

  8. Hypothetical Crazy Cola The exact same formula asCoca Cola®

  9. False Advertising • Lanham Act §43(a)(1) • Any person who, on or in connection with any goods or services … uses in commerce any word, term, name, symbol, or device … or any false designation of origin, false or misleading description of fact … which -- • (B) in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person’s goods, services, or commercial activities, • shall be liable in a civil action by any person who believes that he or she is likely to be damaged by such act.

  10. “It’s pure, pasteurized juice as it comes from the orange.” Coca Cola v. Tropicana

  11. False Advertising • Literal falsehood • Implicit falsehood • What is the implied message? • Is it false?

  12. Schick v. Gillette

  13. McNeil v. Pfizer

  14. Hypothetical • “Unlike Mylanta, Tums is aluminum-free”

  15. Administrative Details • Next Assignment • VII.C – Dilution

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