Tabberone is pronounced tab ber won
not tay ber own
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Tabberone is pronounced tab ber won |
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| This information is taken directly from the court opinion. It is not taken out of context nor is it altered. |
| From Pizza Hut v. Papa John's, 227 F.3d 489 (5th 2000) |
| Section 43(a) of the Lanham Act, codified at 15 U.S.C. § 1125, provides in relevant part: |
| Any person who . . . in commercial advertising or promotion, misrepresents the nature, characteristics, quality, or geographic origin of his or another person's goods, services, or commercial activities, shall be liable in a civil action by any person who believes that he or she is likely to be damaged by such act. 15 U.S.C. § 1125(a)(1)(B) (West 1999). |
| We have interpreted this section of the Lanham Act as providing "protection against a `myriad of deceptive commercial practices,' including false advertising or promotion." Seven-Up Co. v. Coca-Cola Co., 86 F.3d 1379, 1387 (5th Cir. 1996)(quoting Resource Developers v. Statue of Liberty-Ellis Island Found., 926 F.2d 134, 139 (2d Cir. 1991)). A prima facie case of false advertising under section 43(a) requires the plaintiff to establish: |
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(1) A false or misleading statement of fact about a product; (2) Such statement either deceived, or had the capacity to deceive a substantial segment of potential consumers; (3) The deception is material, in that it is likely to influence the consumer's purchasing decision; (4) The product is in interstate commerce; and (5) The plaintiff has been or is likely to be injured as a result of the statement at issue. |
| See Taquino v. Teledyne Monarch Rubber, 893 F.2d 1488, 1500 (5th Cir. 1990); Cook, Perkiss and Liehe, Inc. v. Northern Cal. Collection Serv. Inc., 911 F.2d 242, 246 (9th Cir. 1990); 4 J. Thomas McCarthy, McCarthy on Trademarks and Unfair Competition, § 27:24 (4th ed. 1996). The failure to prove the existence of any element of the prima facie case is fatal to the plaintiff's claim. |
