Issue link: https://read.dmtmag.com/i/319134
I DA U N I V E R S A L M ay -J u n e 2 0 1 4 11 LEGAL LINE Robert W. McIntyre IDA Association Legal Counsel Continued on page 56 S ince 1947, the U.S. law that defi ned unfair competition has been on the books as the Lanham Act. Fritz Lanham, its author and sponsor, was a U.S. Representative from Texas who served in Congress from 1919 to 1947 and championed intellectual property rights. Originally, the Act was designed to protect the rights of trademark holders and prohibit unfair competition by counter- feiters. One of its key provisions was the incorporation of penalty provisions for willful infring- ers – treble damages and attor- ney's fees. As expected, the Act has been amended several times since 1947 and now includes "cybersquatting" provisions and extensive "unfair competition" language. Additionally, since basic code law, like the Act, was written by lawyers (including Fritz), there is ample room for interpretation by the courts. And since it is federal law, it is only enforceable in federal courts; therefore, the law is truly the "law of the land" and is not beholden to any state law or foreign law. Since 1947, much has changed in the way the world does busi- ness, and people and companies that have been aff ected by others' acts have used the courts to enforce their perceived rights under the Act. Now adding to the lawyer mix are the judgments written by 94 district courts and 13 appeals courts since 1948 – some of which are consistent and A Bigger Net some which are not. Despite multiple federal court determinations regarding what the Act might say in each unique lawsuit, the courts actually do look at each other's decisions and make a good faith eff ort at con- sistency. However, this situation is o en both clear and confusing at the same time, and sometimes cases end up in the United States Supreme Court. To understand the Supreme Court and its mandate, one must recognize that the Court can- not and will not accept every appeal made from a lower court. In picking and choosing what appeals it will hear, the Court may look at a number of factors: is the case important from a legal and social point of view, will it clear up confl icting decisions by lower courts, or is it a key con- stitutional question? is is why many well-known cases involve nationally signifi cant matters of interpretation of the Constitu- tion: Miranda, for example, on police powers, Washington Post on freedom of the press, and so on. us, the Court tries to pick cases that will have an eff ect on the largest number of people in key legal areas. Once in a while, the Court will plunge into cases that impact businesses, and recently, a decision was made on one that can aff ect every member. Fast backward to the Act. One of the expansions of the original Act has been in the area of "unfair competition." Originally intended to prevent counterfeiting of trade- marked goods, it has been gradu- ally modifi ed to include many other types of unfair competition. Today, unfair competition has been defi ned as any type of conduct that deceptively copies a product, infringes on a patent or trademark, deceptively copies the "business identity" of a company ("trade dress"; See Legal Line in a recent Universal for that topic), and also, in some manner, decep- tively disparages a company's product. It is the latter that has sometimes been used by the OEMs to seek court assistance in stopping a non-OEM competi- tor from selling its products that can be used as replacement parts or assemblies. e mantra has not changed since the 1970s… it is simply that "x" company's non-OEM products are "not as good," or sometimes, "not good at all." Under this umbrella, false claims of "voiding the warranty," not complying with EPA, or other codes or regulations, poor quality, bad materials, and other made-up nonsense fl ood the media and the marketplace. Additional strategies employed by the OEMs are plac- ing restrictions on their suppli-