Commercial advertising or promotion

AND · 15usc1125:commercial-promotion

Commercial speech disseminated to the relevant purchasing audience to influence buying. A false statement in any private dispute or investor communication is not automatically advertising. Genus’s old circuit formulation included competition; do not import that as a universal bar after Lexmark or later circuit decisions. Advertising/promotion remains an independent statutory requirement.

Exact element source

(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,
Source: docroot/ir/usc/title15.jsonl#title15_sec1125; Unicode character offsets [674:869] (end exclusive); SHA-256 0a5680239d11ae3247a99abab2344db45177346d2d2e3050e95c82fb39f3aca7.

Routes and case patterns

Curated routes and observed case patterns
RouteDefinitionMerits instance blocksDistinct merits casesExamples (up to 3 cases per count group)
_whole
accepted; provisional (1 case)
The element is decided as a whole: the reasoning turns on no narrower doctrinal sub-question that distinguishes it from any other application of this element.0
Satisfied 0; not satisfied 0; excluded context 1
0

Used only in non-merits blocks (1).

Excluded context examples:

Lexmark Int'l, Inc. v. Static Control Components, Inc. — 572 U.S. 118 (2014) · Supreme Court of the United States · 2014 — not reached · basis not recorded (15usc1125: author: Astra2 · QA: PASS (QA2, neov2/qa/wave2-cases-QA2-crosscheck.md)) · applied/merits · not counted
Pattern: assumed-coverage/letters-and-cartridge-notices

audience-and-dissemination
provisional; provisional (1 case)
Whether the statement was disseminated to the relevant purchasing public as advertising or promotion.1
Satisfied 0; not satisfied 1; excluded context 0
1

Genus Lifesciences Inc. v. Lannett Co. — 378 F. Supp. 3d 823 (2019) · United States District Court for the Northern District of California · 2019 — not · pleaded (15usc1125: author: Astra2 · not independently reviewed) · applied/merits · counted
Pattern: audience/investor-filings-and-calls

passive-retail-display
provisional; provisional (1 case)
Whether a reseller who merely displays and sells goods in the manufacturer's packaging engages in advertising or promotion.1
Satisfied 0; not satisfied 1; excluded context 0
1

Outlaw Lab., LP v. Shenoor Enter., Inc. — 371 F. Supp. 3d 355 (2019) · United States District Court for the Northern District of Texas · 2019 — not · pleaded (15usc1125: author: Flash3 · QA: FIX (Fable, neov2/cases/TRIAGE-Flash.md)) · applied/merits · counted
Pattern: convenience stores shelving and selling a third-party manufacturer's falsely labelled supplement, no advertising of their own alleged

How courts decided this element

Annotation blocks, including explicitly excluded context
CaseElementHolding and scopePatternExact source quotations
Outlaw Lab., LP v. Shenoor Enter., Inc. — 371 F. Supp. 3d 355 (2019) · United States District Court for the Northern District of Texas · 2019 — not · pleaded (15usc1125: author: Flash3 · QA: FIX (Fable, neov2/cases/TRIAGE-Flash.md))Commercial advertising or promotionnot
Counted merits instance
applied / merits

basis: pleaded; claim: (a)(1)(B); party: Retail Defendants (convenience stores); count: false advertising under 15 U.S.C. § 1125(a)(1)(B); subject: party=Retail Defendants (convenience stores); count=false advertising under 15 U.S.C. § 1125(a)(1)(B)

Retailers who are alleged only to display and sell manufacturer-labelled products do not thereby "disseminate" advertising or promotion; the court leaves open retailer liability on fuller allegations and gave leave to replead.
convenience stores shelving and selling a third-party manufacturer's falsely labelled supplement, no advertising of their own alleged
But these individualized allegations do no more than allege that the Retail Defendant "owns and operates" a store at a certain address and "promotes, advertises, disseminates and offers for sale" the Rhino Products at its store.
Source: docroot/ir/caselaw/f_supp_3d_371.jsonl#/f-supp-3d/371/0355-01; Unicode character offsets [18411:18639] (end exclusive); SHA-256 8cf1fef6b033291600c1d067449e69c3c6d5a70e507a5f513e4d3d48b8338015.

Evidence kind: fact; polarity: supports; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

The Court agrees with Defendants-Plaintiff has alleged only that Retail Defendants sold the Rhino Products in store.
Source: docroot/ir/caselaw/f_supp_3d_371.jsonl#/f-supp-3d/371/0355-01; Unicode character offsets [25192:25308] (end exclusive); SHA-256 8cf1fef6b033291600c1d067449e69c3c6d5a70e507a5f513e4d3d48b8338015.

Evidence kind: fact; polarity: cuts-against; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

Applying that same reasoning in the context of this 12(b)(6) motion, there is nothing in the complaint that alleges the Retail Defendants here did anything more than passively offer the Rhino Products for sale.
Source: docroot/ir/caselaw/f_supp_3d_371.jsonl#/f-supp-3d/371/0355-01; Unicode character offsets [26545:26755] (end exclusive); SHA-256 8cf1fef6b033291600c1d067449e69c3c6d5a70e507a5f513e4d3d48b8338015.

Evidence kind: fact; polarity: cuts-against; absent flag: 1; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

To qualify as a statement made in the context of commercial advertising or promotion, the representation should be made for "the purpose of influencing consumers to buy defendant's goods or services" and "disseminated sufficiently to the relevant purchasing public."
Source: docroot/ir/caselaw/f_supp_3d_371.jsonl#/f-supp-3d/371/0355-01; Unicode character offsets [16302:16568] (end exclusive); SHA-256 8cf1fef6b033291600c1d067449e69c3c6d5a70e507a5f513e4d3d48b8338015.

Evidence kind: rule; polarity: not recorded; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

The Court instead holds that in this case the Retail Defendants cannot be held liable for false advertising based solely on allegations that they displayed and sold the Rhino Products in their stores.
Source: docroot/ir/caselaw/f_supp_3d_371.jsonl#/f-supp-3d/371/0355-01; Unicode character offsets [34220:34420] (end exclusive); SHA-256 8cf1fef6b033291600c1d067449e69c3c6d5a70e507a5f513e4d3d48b8338015.

Evidence kind: held; polarity: not recorded; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

Genus Lifesciences Inc. v. Lannett Co. — 378 F. Supp. 3d 823 (2019) · United States District Court for the Northern District of California · 2019 — not · pleaded (15usc1125: author: Astra2 · not independently reviewed)Commercial advertising or promotionnot
Counted merits instance
applied / merits

basis: pleaded; party: Genus against Lannett; count: Grandfathered and preliminary-NDA statements; subject: party=Genus against Lannett; count=Grandfathered and preliminary-NDA statements

Failure concerns purpose and dissemination, not an absolute SEC-filing exemption. The older cited competition formulation is not adopted as a universal post-Lexmark requirement.
audience/investor-filings-and-calls
Nevertheless, Lannett claimed that C-Topical was grandfathered in a number of Securities and Exchange Commission ("SEC") filings and investor calls in between December 2017 and September 2018.
Source: docroot/ir/caselaw/f_supp_3d_378.jsonl#/f-supp-3d/378/0823-01; Unicode character offsets [6179:6371] (end exclusive); SHA-256 cecb4fb9356fb3ba0c59f5db0729643e572e7c328d93987db6eb8bd51b3f3a87.

Evidence kind: fact; polarity: cuts-against; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

Although the procedural posture in RPost is different, Genus has failed to allege (rather than prove as in RPost ) that the SEC statements and investor calls were made for the purpose of influencing consumers to buy its goods or services, or that they were disseminated sufficiently to pharmacists, doctors, and hospital groups.
Source: docroot/ir/caselaw/f_supp_3d_378.jsonl#/f-supp-3d/378/0823-01; Unicode character offsets [27906:28234] (end exclusive); SHA-256 cecb4fb9356fb3ba0c59f5db0729643e572e7c328d93987db6eb8bd51b3f3a87.

Evidence kind: fact; polarity: cuts-against; absent flag: 1; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

But in order to be actionable, the statements must be accompanied by specific allegations that they were made for the purpose of influencing the customers of cocaine hydrochloride solutions to buy C-Topical, or were disseminated sufficiently to the relevant purchasing public (pharmacists, hospitals, and doctors) to constitute "advertising" or "promotion" within the pharmaceutical industry.
Source: docroot/ir/caselaw/f_supp_3d_378.jsonl#/f-supp-3d/378/0823-01; Unicode character offsets [30196:30588] (end exclusive); SHA-256 cecb4fb9356fb3ba0c59f5db0729643e572e7c328d93987db6eb8bd51b3f3a87.

Evidence kind: rule; polarity: not recorded; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

I find that the allegations contained in the SEC filings and investor calls stating that C-Topical is "grandfathered" or under a "preliminary new drug application" cannot, without more, state a claim for Lanham Act false advertising because they do not rest on any statements made in advertising or promotion.
Source: docroot/ir/caselaw/f_supp_3d_378.jsonl#/f-supp-3d/378/0823-01; Unicode character offsets [30614:30923] (end exclusive); SHA-256 cecb4fb9356fb3ba0c59f5db0729643e572e7c328d93987db6eb8bd51b3f3a87.

Evidence kind: held; polarity: not recorded; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

Lexmark Int'l, Inc. v. Static Control Components, Inc. — 572 U.S. 118 (2014) · Supreme Court of the United States · 2014 — not reached (15usc1125: author: Astra2 · QA: PASS (QA2, neov2/qa/wave2-cases-QA2-crosscheck.md))Commercial advertising or promotionnot_reached
Excluded from merits counts
applied / merits

An express assumption reserved from review, not a pleaded finding of commercial promotion. Not-reached excludes this unpresented issue from instances.
assumed-coverage/letters-and-cartridge-notices
We assume without deciding that the communications alleged by Static Control qualify as commercial advertising or promotion.
Source: docroot/ir/caselaw/us_572.jsonl#/us/572/0118-01; Unicode character offsets [37567:37691] (end exclusive); SHA-256 925bbd2e7ac80af005ca0208b672687190e36af5f681de2bd2a157b522bc7810.

Evidence kind: held; polarity: not recorded; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

Court interpretations