Supreme Court to Decide Requirements for Standing under Lanham Act

In the coming weeks, the Supreme Court will decide a case involving the proper framework for determining standing to maintain an action for false advertising under the Lanham Act.  The case, Lexmark International, Inc. v. Static Control Components, has a long history, in which I played a role nearly eight years ago.  In fact, I believe that I drafted the motion to dismiss that is the subject of this appeal.

The District Court granted that motion, in September 2006, dismissing the antitrust and false advertising counterclaims for lack of standing based on the factors set forth in Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters.  After that decision, in 2007, there was a trial on the remaining claims, which resulted in a number of lengthy appeals.  In one of those appeals, on October 26, 2012, the Sixth Circuit reversed the District Court's ruling as to standing after finding that that the Associated General factors were not the proper analysis for a Lanham Act claim.

This decision added to an existing circuit split on the proper analytical framework.  The Third, Fifth, Eighth and Eleventh Circuits have adopted the Associated General factors; the Seventh, Ninth and Tenth Circuits have adopted a categorical test permitting suits only by an actual competitor; and the Sixth and Second Circuits have applied a more expansive "reasonable interest" test.

It is rather unusual for the Supreme Court to review a district court decision from way back in 2006.  I imagine that at the time the district court initially ruled on this issue, many of the cases that are now being cited and relied upon by both parties had not yet been decided.  It is also odd, on a personal level, to remember back eight years ago (before I had any children!) when I drafted that initial motion to dismiss.