Even post-Lexmark, Lanham Act isn’t for garden variety defamation claims

Mitchell v. Sanchez, No. 14–0996–CV, 2015 WL 1393266 (W.D. Mo. Mar. 25, 2015)
Mitchell alleged that defendants incorrectly stated on various media broadcasts that she had AIDS/HIV. She sued for violation of the Lanham Act, invasion of privacy and intrusion into seclusion, false light invasion of privacy, and defamation per se.
Defendant Mediacom argued that Mitchell lacked Lanham Act standing, since she was a noncompetitor. Lexmarknixes that argument, requiring only that a plaintiff come within the zone of interests (an injury to a commercial interest in reputation or sales) and allege proximate causation in the form of economic or reputational injury “flowing directly from the deception wrought by the defendant’s advertising; and that that occurs when deception of consumers causes them to withhold trade from the plaintiff.”
The court found that Mitchell didn’t fall within the Lanham Act’s zone of interest, since “Congress did not intend to have every garden variety defamation claim transformed into a Lanham Act claim.” Also, there was no proximate causation because there was “a glaring absence of any actual advertising at issue,” since the defamatory statements occurred during media broadcasts. (I think the court misreads Lexmark’s language—the fact that it’s not advertising doesn’t mean that it didn’t proximately cause Mitchell’s harm; defamation generally does proximately cause reputational harm when it’s actionable.  The problem is that it’s not “advertising or promotion,” an element of the underlying claim.)
Also there was no false endorsement claim. A false association with “having and spreading AIDS/HIV” can’t serve as the basis for a false endorsement claim under the Lanham Act.
The court asked for more information to figure out whether diversity jurisdiction remained.
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