December 30, 2013
On December 3, 2013, the Supreme Court heard oral argument in Lexmark International, Inc. v. Static Control Components, Inc. The question in this case is how to appropriately determine a party’s standing to bring a cause of action for false advertising under the Lanham Act. Are the correct factors (1) those set forth in Associated General Contractors of California, Inc. v. California State Council of Carpenters as adopted by the Third, Fifth, Eighth, and Eleventh Circuits; or (2) the categorical test, permitting suits only by an actual competitor, employed by the Seventh, Ninth, and Tenth Circuits; or finally, (3) a version of the more expansive “reasonable interest” test, either as applied by the Sixth Circuit in this case or as applied by the Second Circuit in prior cases?
To discuss the case, we have David Olson, who is an Associate Professor of Law at the Boston College Law School.