Pure disparagement by competitor is commercial speech even without invitation to buy

Monat Global Corp. v. Kavanaugh , 2018 WL 501616, No. 17-cv-1666
(M.D. Fla. Jan. 22, 2018)
The parties sell competing hair products. Kavanaugh
allegedly orchestrated an “[I]nternet smear campaign” by posting false comments
on Facebook about Monat’s products and marketing tactics, e.g., that Monat’s
products duplicate the formula of non-party Wen’s products, which the FDA
reportedly investigated after receiving 1,300 complaints about balding and
scalp irritation. At least 5,000 people, including many “salon owners,
stylists, or [others] in the hair[-]care industry,” allegedly view Kavanaugh’s
Facebook posts. [Wonder how many that drops to given Facebook’s algorithms.]

Defendants argued that none of Kavanaugh’s statements
constitutes “commercial” advertising subject to the Lanham Act because they
didn’t tout the defendants’ products or encourage a prospective customer to
patronize the defendants. Instead, the statements attempted to discourage a
transaction with someone else. “Even a statement that expressly proposes no
transaction might constitute commercial speech if included in an advertisement
that mentions a particular product and if profit motivates the statement.”
Given that the statements specifically mentioned Monat’s products and that
Monat alleged a profit motive for the statements, plaintiff adequately alleged
that the statements were commercial speech.

from Blogger http://ift.tt/2DNECXB

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