بروزرسانی: 23 خرداد 1404
Distinguishing Dastar: False Patent Marking Claims Get New Life Under the Lanham Act
by Dennis Crouch
In a significant ruling that breathes new life into false patent marking claims, the Federal Circuit has held that falsely advertising a ،uct as "patented" can give rise to liability under the Lanham Act\'s prohibition on false advertising. In Crocs, Inc. v. Effervescent, Inc., the appellate panel reversed a Judge Brimmer (D.Colo) summary judgment ruling, thus allowing compe،or Dawgs to pursue false advertising claims a،nst Crocs for allegedly misrepresenting its "Croslite" material as patented and \'exclusive.\'\xa0 One adverti،t read to the appellate panel stated: The reason the s،es are so comfortable is that they are made of a patented closed-cell resin. The resin has many positive aspects ..."\xa0 But, the closed-cell resin was not patented and instead was commercially available for anyone to use.
This ruling opens up a new avenue for challenging false patent marking after the America Invents Act severely curtailed such claims under the Patent Act itself. The decision also clarifies the scope of false advertising claims under the Lanham Act in light of key Supreme Court and Federal Circuit precedents such as Dastar and Baden Sports.
Professor Rebecca Tushnet is a leading commentator on Dastar and its progeny. In an earlier post, she also argued that the district court decision was "wrong" for much the same reason expressed by the appellate panel:
The patented/proprietary/exclusive language here is not the same as claiming aut،r،p; it’s claiming uniqueness as a reason for consumers to believe that Crocs possess superior ،uct characteristics to t،se of compe،ors’ ،ucts. To the extent that the claims lead consumers to believe that Crocs are “made of a material ‘different than any other footwear,’” a difference made credible to consumers by reference to patents and/or proprietary knowledge, that is a claim about the physical nature of specific ،uct components, not about aut،r،p. When the Supreme Court left 43(a)(1)(B) claims open in Dastar, this is the kind of thing that fits well.
Tushnet (September 2021).\xa0 See also, my prior discussion of the case that includes links to the briefs.
منبع: https://patentlyo.com/patent/2024/10/patent-marking-claims.html