Dastar no bar to claims that using images of P’s product is deceptive where D’s product differs

Primesource Building Products, Inc. v. Lee Gp. Int’l, Inc.,
No. 3:19-CV-02878-X, 2020 WL 5038176 (N.D. Tex. Aug. 25, 2020)

PrimeSource alleged that Lee Group wrongly used images and
product descriptions of PrimeSource’s concrete curing blanket to sell its own
competing product. It brought a §43(a)(1)(B) false advertising claim, which the
court agreed wasn’t barred by Dastar.

PrimeSource alleged that Lee Group used PrimeSource’s
product descriptions and images, including depictions of PrimeSource’s “innovative
edge overlay,” but that the descriptions and images didn’t accurately describe
Lee Group’s products. This was plausibly misleading and deceptive. It was
plausibly material because “claiming a technologically innovative advantage … will
likely influence consumers’ decision-making.”

This was not a barred attempt to recast a copyright claim or
inventorship claim as a trademark claim. No mention of copyright or inventorship would be necessary to
prove the claim. This seems exactly right and consistent with the Dastar Court’s suggestion that false advertising claims could still survive under appropriate circumstances.

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