Distinguishing Dastar: False Patent Marking Claims Get New Life Under the Lanham Act
Patent – Patently-O 2024-10-04
Summary:
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 product 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 competitor Dawgs to pursue false advertising claims against Crocs for allegedly misrepresenting its "Croslite" material as patented and 'exclusive.' One advertisement read to the appellate panel stated: The reason the shoes are so comfortable is that they are made of a patented closed-cell resin. The resin has many positive aspects ..." 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.