Reading list: Lanham Act standing after Lexmark

Virginia E. Scholtes, The Lexmark Test for False Advertising Standing: When Two Prongs Don’t Make a Right, 30 Berkeley Tech. L.J. 1023 (2015):

Part I of this Note tracks the development of standing under § 43(a) of
the Lanham Act and analyzes the three-way circuit split on false
advertising standing that existed before the Lexmark decision. Part II
describes the Supreme Court’s decision in Lexmark, focusing on the
Court’s reasoning for formulating the new two-pronged test and the
Court’s interpretation of the Lanham Act’s purpose. Part III assess the
extent to which both the zone-of-interests prong and the proximate cause
prong serve the purposes of the Lanham Act. First, Part III shows how
the zone-of-interests prong gives a right of action to plaintiffs with an
injury the Lanham Act was intended to protect, focusing on the issue of
consumer standing under § 43(a). Next, Part III explains two situations
where the proximate cause prong may fail to serve the purpose of the
Lanham Act: when the defendant has a low market share, and when the
plaintiff’s injury was inflicted through network effects. Finally, Part III
analyzes courts’ application of the proximate cause prong in false
advertising cases and concludes that the relaxed application of the
proximate cause requirement will likely prevent this prong from barring
plaintiffs who otherwise fall within the class of plaintiffs the Lanham Act
was intended to protect. Overall, the Lexmark test for federal false
advertising standing serves the purpose of the Lanham Act because it
grants a cause of action to plaintiffs with a commercial injury, thus
deterring unfair competition.

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