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The Intellectual Property StrategistKickerSectionsNewsLJN Newsletters

Lanham Act

By Judith L. Grubner
April 29, 2009

In Dastar Corp. v. Twentieth Century Fox Film Corp., 539 U.S. 23 (2003), the Supreme Court considered the overlap of copyright and trademark/unfair competition law, concluding that a company did not commit false advertising under '43(a) of the Trademark Act (15 U.S.C. '1125(a)) by representing that it was the author of a previously copyrighted work it had not actually created, as long as its identity as the source of the copied work was clear to the public. The Supreme Court determined that where an accused copyright infringer truthfully represented that it had published the alleged copy, it was not making a “false designation of origin” under '43(a). The Federal Circuit has now concluded that Dastar is similarly applicable to the overlap between patent and trademark/unfair competition law, where an accused patent infringer makes false claims that it originated a third party's patented technology. Baden Sports, Inc. v. Molten USA, Inc., 556 F.3d 1300 (Fed. Cir. 2009).

The Baden Sports Case

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