Amicus brief in 4th Circuit Lanham Act case on the meaning of literal falsity

Brian Wolfman filed this amicus, which I drafted, on behalf of a number of Lanham Act professors. It involves a false advertising case with a number of moving parts; the amicus addresses only the court’s opportunity to correct the mistaken reasoning of In re GNC, a consumer protection case that the district court misunderstood as a Lanham Act case (in fairness, this was basically invited error, because the GNC panel cited only Lanham Act cases, and not state consumer protection law cases, in inventing its new standard that had never been applied in either kind of case: that literal falsity only occurs when all reasonable scientists would agree that a claim is false). Since defendant-appellants did not consent (they wanted more space in their brief from appellees in return for consent; appellees understandably did not agree), the court will decide whether to accept the amicus.

from Blogger

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