fake not-really-third-party reviews can be commercial advertising or promotion

Sanho Corp. v. KaiJet Tech. Int’l Ltd., No.
1:18-cv-05385-SDG, 2020 WL 4346881 (N.D. Ga. Jul. 29, 2020)

Sanho owns rights in a design patent that claims the
ornamental design for a multi-function docking station colloquially known as
the “HYPERDRIVE,” and a design patent “directed at the technology underlying
Sanho’s HYPERDRIVE product.” [???] It sued KaiJet for misappropriation and
infringement.

KaiJet US counterclaimed for, among other things, false
advertising under the Lanham Act. It alleged that Sanho paid third parties— “falsely
disguised as independent reviewers, not paid-for advertisement—to submit positive
reviews of Sanho’s HYPERDRIVE product on various online platforms,” and “to
remove negative reviews of Sanho’s product.” Sanho argued that this wasn’t “commercial
advertising or promotion,” but the court disagreed, rightly without needing
much analysis. That the reviews purported to come from a third party did not
take them outside the scope of the Lanham Act if they did in fact come from
Sanho (which of course remains to be seen).

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