The IT Law Wiki


Section 43(a) of the Lanham Act[1] provides two general theories of liability:

(1) false representations regarding the origin, endorsement or association of goods or services through the wrongful use of another's distinctive mark, name, trade dress, or other device ("false endorsement" or "false association"), and

(2) false representations in advertising concerning the quality of services or goods ("false advertising").[2]

“To prevail under §43(a) of the Lanham Act, a plaintiff must show that it has ‘a valid, protectible trademark and that the defendant’s use of a colorable imitation of the trademark is likely to cause confusion among consumers.’”[3]


The Act provides standing to "any person that believes that he or she is or is likely to be damaged by such an act."[4] To meet the prudential standing requirement, a plaintiff must "at least allege an existing intent to commercialize an interest in identity."[5]


  1. The text of Section 43(a) of the Lanham Act[1] provides that: (1) Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which — (A) is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person, or (B) in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her 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 or is likely to be damaged by such act. (2) As used in this subsection, the term "any person" includes any State, instrumentality of a State or employee of a State or instrumentality of a State acting in his or her official capacity. Any State, and any such instrumentality, officer, or employee, shall be subject to the provisions of this Act in the same manner and to the same extent as any nongovernmental entity. (3) In a civil action for trade dress infringement under this Act for trade dress not registered on the principal register, the person who asserts trade dress protection has the burden of proving that the matter sought to be protected is not functional.
  2. See L.S. Heath & Son, Inc. v. AT&T Infor. Sys., Inc., 9 F.3d 561, 575 (7th Cir. 1993).
  3. Washington Speakers Bureau, Inc. v. Leading Authorities, Inc., 33 F.Supp.2d 488, 493 (E.D. Va. 1999).
  4. 15 U.S.C. §1125(a).
  5. Condit v. Star Editorial, Inc., 259 F.Supp.2d 1046, 1052 (E.D. Cal. 2003).