Client Alert
Court Finds Single In-Person Sales Pitch is not “Commercial Advertisement” Under Lanham Act
Client Alert
Court Finds Single In-Person Sales Pitch is not “Commercial Advertisement” Under Lanham Act
April 14, 2011
The Northern District of Illinois recently held that a single in-person sales pitch was not a "commercial advertisement" as defined under the Lanham Act. In an action for false advertising against Control Solutions LLC filed by Oshkosh Corporation alleging that Control Solutions made false statements of fact in an in-person sales pitch to the United States military, the court held that person-to-person contact does not constitute "commercial advertising" under the Lanham Act. The court relied on a previous decision that "advertising is a form of promotion to anonymous recipients, as distinguished from face-to-face communication." However, this is not necessarily the view of all federal courts, as other courts have held that an advertising message must only be "sufficiently disseminated" to the relevant purchasing public. It was not alleged that Control Solutions provided any sales pitch materials to the person making the pitch. Business-to-business communications designed by a company for use in sales pitches may be "commercial advertising" subject to the Lanham Act if such materials are sufficiently disseminated to the relevant purchasing public.
TIP: Businesses should take care when providing sales materials to sales representatives or communicating via repeated in-person contact with the relevant purchasing public because those materials and statements may be considered "commercial advertising" under the Lanham Act.