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Claim that infringing product was defendant's "innovation" cannot support section 43(a) claim

By McKee, Voorhees & Sease, P.L.C.

In a decision last month, the Federal Circuit reversed a district court's denial of judgment as a matter of law from a jury award of $8,054,579 under § 43(a) of the Lanham Act.  The plaintiff held a patent on a type of basketball, and the defendant (against whom summary judgment of infringement was granted) advertised their basketball was their "innovation."

The Federal Circuit reversed the district court's decision and held that the assertion of a product as being "innovative" is precluded from liability under 43(a) because the statement isn't about the "origin of the goods" or the "nature, characteristics, or qualities" of the goods.  Rather, the plaintiff's main problem with the use of "innovative" in connection with the basketball was that is was a false designation of authorship and the Supreme Court's decision in Dastar Corp. v. Twentieth Century Fox Film Corp. precluded such a claim under § 43(a)(1)(A).  The assertion was also not actionable under § 43(a)(1)(B) based on the Ninth Circuit's interpretation of Dastar in Sybersound Records v. UAV Corp.

More on Baden Sports, Inc. v. Molten USA, Inc., after the jump.

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Full post as published by FileWrapper on March 06, 2009 (boomark / email).