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.All variants
| Variant | Description | Merits instance blocks | Distinct cases | Example cases (up to 3 per group) |
|---|---|---|---|---|
| assumed-coverage/letters-and-cartridge-notices | 0 Satisfied 0; not satisfied 0; excluded context 1 | 0 | No counted merits examples Excluded context examples: /us/572/0118-01 — Supreme Court of the United States · 2014 — applied/merits | |
| audience/investor-filings-and-calls | 1 Satisfied 0; not satisfied 1; excluded context 0 | 1 | /f-supp-3d/378/0823-01 — United States District Court for the Northern District of California · 2019 — not |
How courts decided this element
| Case | Element | Holding and scope | Variant | Exact source quotations |
|---|---|---|---|---|
| /f-supp-3d/378/0823-01 — United States District Court for the Northern District of California · 2019 | Commercial advertising or promotion | not 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.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.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.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. |
| /us/572/0118-01 — Supreme Court of the United States · 2014 | Commercial advertising or promotion | not_reached Excluded from merits counts applied / meritsAn 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. |