Litigation partners Catherine Nyarady and Crystal Parker’s latest intellectual property litigation column, “Crocs’ Cert Petition Sparks Lanham Act Circuit Split,” appeared in the September 10 issue of the New York Law Journal. The authors discuss a recent decision by the Federal Circuit that broadened a split between the circuit courts on the interpretation of Section 43(a)(1)(B) of the Lanham Act, which permits claims for false advertising and false association. In Crocs, Inc. v. Effervescent, Inc., the Federal Circuit joined the Fourth Circuit in taking a more expansive view of the statute, allowing false advertising claims to be directed toward misrepresentations of intangible attributes such as authorship or when a product is “patented” or “proprietary.” In contrast, the Second, Sixth and Ninth Circuits have taken a narrower view, holding that false advertising claims under this statute must be explicitly tied to the “nature, characteristics, qualities, or geographic origin” of the good. In July, Crocs filed a petition for a writ of certiorari asking the Supreme Court to resolve the circuit split; the Court’s response is pending. Litigation associates Matthew Tracy and Thomas Macchio assisted in the preparation of this article.
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