Jenner & Block

Firm Amicus Brief Argues for “Reasonable Interest” Test in False Advertising Matters

A Bloomberg Law SCOTUSblog article published on November 29 describes as  “powerful” an amicus curiae brief written by Partners Marc A. Goldman and Paul M. Smith and Associate Elizabeth C. Bullock on behalf of the American Intellectual Property Law Association regarding a case argued before the U.S. Supreme Court on December 2, 2013.  The same day, Marc offered his insights about the case at an American University Washington College of Law “Supreme Court Series” program.  In Lexmark International, Inc. v. Static Control Components, the Court is asked to consider whether the appropriate analytic framework for determining a party’s standing to maintain an action for false advertising under the Lanham Act is (1) the factors set forth in Associated General Contractors of California, Inc. v. California State Council of Carpenters as adopted by the Third, Fifth, Eighth, and Eleventh Circuits; (2) the categorical test, permitting suits only by an actual competitor, employed by the Seventh, Ninth, and Tenth Circuits; or (3) a version of the more expansive “reasonable interest” test, either as applied by the Sixth Circuit in this case or as applied by the Second Circuit in prior cases.  AIPLA, a national bar association representing a diverse group of practitioners in patent, trademark, copyright and unfair competition law, has no stake in the litigation “other than its interest in seeking the correct and consistent interpretation of the law as it relates to intellectual property issues,” according to the brief.  The team argues that the Court should adopt the “reasonable interest” test, closely tied with the intent of the Lanham Act “without adding additional, unnecessary barriers to challenges of false advertising.”