Thursday, February 24, 2011

Statements on Websites and Twitter May Qualify as "Advertisement" for Purposes of False Marking Statute

Defendant's motion to stay discovery pending its motion to dismiss plaintiff's false marking claim was denied. "Taking a 'preliminary peek' at the merits [of defendant's motion to dismiss plaintiff's false marking claim], the court finds good reason to question if Defendant will prevail . . . Defendant argues that Plaintiff fails to identify 'one "paid announcement" or document that can qualify as an "advertisement," even[] under the broadest interpretation.' At best, Defendant argues, Plaintiff has alleged promotional statements or interviews, which are not 'advertisements,' as contemplated by the statute. Yet the Amended Complaint includes allegations that Defendant communicated its use of a patented water treatment technology on its website, on Twitter, on its menus . . . and more, with the knowledge that it owned no patent. These allegations may be sufficient to plead a 'uses in advertising' violation of the false marking statute."

Mamma Mia's Trattoria, Inc. v. The Original Brooklyn Water Bagel Co., Inc., 9-10-cv-81106 (FLSD February 18, 2011, Order) (Vitunac, M.J.)

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