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

Consumer Law

: 43(B)log

Customer's Lanham Act claim proceeds

By Rebecca Tushnet

Lufthansa Systems Infratec GMBH v. Wi-SKY Inflight, Inc., 2011 WL 862314 (E.D. Va.)

A noncompetitor can maintain a Lanham Act false advertising claim against a potential supplier?at least as long as the supplier doesn?t make the right argument. Here, Wi-SKY claims rights in a technology for internet service for airline passengers. It began negotiations with Lufthansa, a potential buyer. Then two individuals who also claim rights in the technology allegedly broke their agreement with Wi-SKY and began negotiating with Lufthansa on their own. As the threats escalated and Wi-SKY sued the individuals and relevant financiers in Georgia. Lufthansa then sued and included Lanham Act claims because Wi-SKY posted the complaint against those parties on its website, allegedly in an attempt to sabotage a deal with Lufthansa. Lufthansa sought a preliminary injunction to compel the removal of the complaint from Wi-SKY?s website, but the parties then agreed that Wi-SKY would remove ?certain information? from the website. (I would think that the usual doctrines making it harder to sustain a Lanham Act claim against an accurate report that a lawsuit has been filed would apply, but the court doesn?t seem interested, at least at this stage; it doesn?t end up holding Lufthansa to a requirement of pleading that the suit was frivolous/in bad faith, for example.)

Wi-SKY argued that Lufthansa failed to plead that the statements were made in commercial advertising or promotion, that it made a misrepresentation by posting information regarding the Georgia lawsuit on its website, that the statements would influence a consumer?s purchasing decision, or that the posting occurred ?in commerce.? The court disagreed. The complaint stated that Wi-SKY ?made false statements and representations on the investor relations section of its public website concerning a business relationship between itself and Lufthansa.? The complaint then alleged that this generated confusion and deception, resulting in injury to Lufthansa?s commercial interests. ?Further details concerning the nature of Wi-SKY's misrepresentations or the extent of Lufthansa's injuries are unnecessary.?

Frankly, I?m surprised that the court didn?t take the ?commercial advertising or promotion? part more seriously, even if Wi-SKY didn?t raise standing separately. The test used by basically every court highlights that the Lanham Act targets only speech by a competitor. I see no competition here.

Full post as published by 43(B)log on March 22, 2011 (boomark / email).