CW,Inc.publishes Consumer Watchdog,a magazine whose articles consist of the writers' personal experiences with and reactions to a variety of products.In the June 1997 issue of Consumer Watchdog,a review included this statement: Fungus Co.'s 'Fungo' brand athlete's foot powder doesn't cut the mustard in comparison to most athlete's foot powders on the market--and I've tried them all,sports fans.Fungo fails to attack athlete's foot with enough force because the product doesn't contain AF88,the active ingredient in any decent athlete's foot powder. In fact,Fungo contains as much AF88 as any other athlete's foot powder on the market.Fungus Co.has filed suit against CW on the theory that the above statements violated section 43(a)of the Lanham Act.On these facts,should Fungus win the section 43(a)case? Why or why not? Would Fungus have success under any other claims?

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Baniqua Hicks · Accepted Answer

Final Answer : Fungus should lose the section 43(a)case because the statement about which Fungus complains (the false statement about Fungo)was not made in a context covered by section 43(a).The case should therefore be dismissed.Section 43(a)-based claims may be brought by commercial plaintiffs in some instances in which the defendant's false statement was about the plaintiff's product or service.However,to be actionable under section 43(a),the defendant's statement must have been in the context of commercial advertising or some other promotional setting.Here,the false statement was in a story in a magazine (Consumer Watchdog)rather than in the context of advertising or promotion.Section 43(a)therefore does not apply.Instead of suing under section 43(a),Fungus should have brought an injurious falsehood claim.

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