Advertising a phone with an unauthorized screenshot of an app doesn’t violate the Lanham Act under Dastar

Appjigger GmbH v. BLU Products, Inc., 2016 WL 4119720, No.
15–22313 (S.D. Fla. Mar. 7, 2016)
Appjigger makes apps, and has an exclusive license for the WP
CLOCK software app, which is available both to end users and also for licensing
and pre-purchase installation by retailers. 
BLU Products’ mobile device allegedly came pre-equipped with the WP
CLOCK. BLU Products also allegedly advertised its mobile devices “with screens
which are substantially indistinguishable from the screenshots of android smart
phones using Plaintiffs’ WP CLOCK.”
This motion to dismiss didn’t challenge the copyright claim,
but dealt with unjust enrichment/unfair competition/false advertising.  Appjigger argued that “[t]he
misrepresentation of fact made by Defendants is that they are the origin of the
software that is prominently displayed in their advertising,” but they weren’t.  However, passing off under Dastar requires the producer to
misrepresent his own goods or services as someone else’s.  There was no suggestion that BLU was passing
off its mobile devices as Appjigger’s; Appjigger doesn’t make mobile devices.  Appjigger alleged that it created “some of
the software, ideas, or concepts embodied in Defendants’ devices,” but not the
devices themselves. 
Appjigger argued that it was the “origin” of the software
while BLU was the origin of the devices, but the court did not accept that “a
single tangible good protected by the Lanham Act may have multiple origins,”
given Dastar’s focus on the producer
of the tangible good.  [Query: would
allegations of false endorsement have mattered? Here, I find it rather
implausible that consumers would think that app makers endorse any device on
which their apps may be found.]  Courts
have therefore easily dismissed claims that unlawful sales of copies of a
plaintiff’s works, with the defendant identified as the creator of the physical
objects, violate the Lanham Act.  This case
was Dastar, except with a valid
underlying copyright [as, indeed, the 9th Circuit found to be the
case on remand in Dastar].
The Lanham Act false advertising claim failed because
Appjigger didn’t identify any misrepresentation about the “nature,
characteristics, qualities, or geographic origin” of BLU’s phones.  Authorship isn’t a “nature, characteristic, or
quality” under the Lanham Act, to avoid pleading around Dastar. “A defendant does not violate the Lanham Act’s false
advertising provisions by promoting its product while failing to properly
attribute the source of the underlying technology embodied in the product.”  Nor could the allegations be re-interpreted as
a trade dress claim, because plaintiffs didn’t plead anything about non-functionality
or distinctiveness.
The coordinate state and common law claims for unjust
enrichment and violation of Florida’s Deceptive & Unfair Trade Practices Act
were preempted.  Appjigger argued that
the necessary extra element to avoid preemption was supplied by “the
advertising and promotion of Defendants’ mobile phones showing the unauthorized
image of the Appjigger WP Clock software home screen.” But “showing the
unauthorized image” was nothing other than an “act[ ] of reproduction,
performance, distribution or display.” Nor was intent to profit an extra
element.
Query: If the copies of the app actually on the BLU phones, assuming such copies were there, were properly purchased, can the use in ads be anything other than fair use?

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