Marking Warranty Cards Within Product Packaging Does Not Support False Marking Claim

In granting plaintiff's motion for summary judgment on defendants' false marking counterclaim, the court determined that plaintiff's warranty cards contained within its product packaging were not "used in advertising" as contemplated by 35 U.S.C. § 292. "Given the plain meaning of 'advertising' and the body of law interpreting 'advertising' in the Lanham context, the Court finds that [plaintiff's] warranty cards are not 'advertising' subject to false marking liability. [Plaintiff's] warranty cards are found inside the packaging; they are invisible until the product is purchased and the packaging opened. And in that regard, they are not used to call something to the attention of the public by way of paid announcement. It would be impossible for them to call attention to the eyewear before the eyewear is purchased."

Oakley, Inc. v. Bugaboos Eyewear Corp., et. al., 3-09-cv-02037 (CASD December 15, 2010, Order) (Sammartino, J.)