Several months I wrote an article about CBD and false advertising under the Lanham Act and noted an important case on the docket of the U.S. Supreme Court concerning damages in trademark cases, Romag Fasteners, Inc. v. Fossil, Inc. (Supreme Court Docket No. 18-1233). As you may recall, the Lanham Act, also known as the Trademark Act of 1946, is the principal federal statute that governs trademarks, service marks, and unfair competition. Although Romag concerns trademark infringement under Section 1125(a) of the Lanham Act, many commentators expected the Supreme Court’s decision to apply to false advertising claims as well. This post reviews that decision and explains why it matters to companies selling CBD products.
A brief refresher on False Advertising under the Lanham Act
Although the Lanham Act is generally thought of as a trademark statute, the Lanham Act also protects businesses against unfair competition from competitors who use false or misleading advertising or labeling. Previously, I had predicted that “at some point a CBD company will make use of the Lanham Act by claiming that a competitor is engaging in false or misleading advertising.” (That prediction has come to pass.)
To prevail on a Lanham Act claim, a