United States Second Circuit

In a Lanham Act false advertising case brought against the maker of over-the-counter home pregnancy tests, the District Court's judgment following a bench trial finding defendant liable for false advertising in violation of Section 43(a) of the Lanham Act, 15 U.S.C. section 1125(a), and issuance of a permanent injunction prohibiting defendant from using certain advertising and packaging and requiring it to issue corrective notices and advertising, are affirmed where: 1) plaintiff’s Lanham Act claim is not precluded by the Food, Drug, and Cosmetic Act, 21 U.S.C. sections 301 et seq.; 2) the District Court did not err in finding falsity in defendant's original packaging; 3) the District Court did not err in finding the revised packaging impliedly false by reason of consumer confusion; 4) the District Court made no error in ruling that defendant’s false messages were material and likely to harm plaintiff; and 5) the district court was within its discretion in imposing an injunction requiring changes to defendant’s packaging and requiring defendant to issue corrective notices and corrective advertising.

Appellate Information

• Published 2016/09/09

Judges

• LEVAL

Court

• United States Second Circuit

Counsel