II. Standard for Summary Judgment
Rule 56 of the Federal rules of Civil Procedure governs the standard for summary judgment. The rule states, “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law” Fed. R. Civ. P. 56. As applied to the comparative advertising, issues involving, unfair competition, disparagement, confusion, falsity of advertising claims, and likelihood of injury are all generally been held to be questions of fact. § 9:25.Pretrial motions—Summary judgment, 1 Federal Unfair Competition: Lanham Act 43(a) § 9:25. The language used by the Third Circuit states, “[e]ach movant must show that no genuine issue of material fact exists; if both parties fail to carry their respective burdens, the court must deny the motions.” Id.
III. Discussion
Comparative advertising in the pharmaceutical industry is not per se illegal but it still governed by Section 43a. of the Lanham Act. The Act prohibits misrepresentations in relation to advertisements and goods entering commerce that are likely to create confusion or cause deception and creates a private right to action for “any person who believes that he or she is or is likely to be damaged by such …show more content…
The Act forbids “any false designation of origin, false or misleading description of fact, or false or misleading representation of fact” that may “cause confusion, or to cause mistake, or to deceive” the nature of goods in commerce.” 15 U.S.C.A. § 1125 (West). Both claims that are “literally false” and ambiguous claims that lead to consumer confusion violate the Lanham Act. If a claim is literally false, there is a presumption that the claim is misleading to consumers and the burden shifts to defendants. Where the claim is ambiguous the plaintiff must prove consumer
Rule 56 of the Federal rules of Civil Procedure governs the standard for summary judgment. The rule states, “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law” Fed. R. Civ. P. 56. As applied to the comparative advertising, issues involving, unfair competition, disparagement, confusion, falsity of advertising claims, and likelihood of injury are all generally been held to be questions of fact. § 9:25.Pretrial motions—Summary judgment, 1 Federal Unfair Competition: Lanham Act 43(a) § 9:25. The language used by the Third Circuit states, “[e]ach movant must show that no genuine issue of material fact exists; if both parties fail to carry their respective burdens, the court must deny the motions.” Id.
III. Discussion
Comparative advertising in the pharmaceutical industry is not per se illegal but it still governed by Section 43a. of the Lanham Act. The Act prohibits misrepresentations in relation to advertisements and goods entering commerce that are likely to create confusion or cause deception and creates a private right to action for “any person who believes that he or she is or is likely to be damaged by such …show more content…
The Act forbids “any false designation of origin, false or misleading description of fact, or false or misleading representation of fact” that may “cause confusion, or to cause mistake, or to deceive” the nature of goods in commerce.” 15 U.S.C.A. § 1125 (West). Both claims that are “literally false” and ambiguous claims that lead to consumer confusion violate the Lanham Act. If a claim is literally false, there is a presumption that the claim is misleading to consumers and the burden shifts to defendants. Where the claim is ambiguous the plaintiff must prove consumer