Navigating the Lanham Act Litigation Frontier— Determining When to Bring Claims; Fighting for an Injunction; Obtaining Proper Relief

March 12, 2015 1:15pm

John G. Froemming
Jones Day LLP

Christopher A. Cole
Crowell & Moring

  • Evaluating threshold considerations
    • Weighing the chances of success against potential public relations fallout
    • Evaluating the effect of any delay in bringing a claim
    • Planning out what evidence will be necessary to:
      • Prove or defend against a claim of confusion or falsity
      • Demonstrate financial harm or damages
    • Determining where to file
  • Obtaining a preliminary injunction
    • What constitutes proof of irreparable harm?
    • Survey of decisions in which relief has been granted
  • Streamlining discovery to lower costs and the burden on counsel
  • Demonstrating actual or likely damages
  • Effectively arguing for powerful relief from the court
    • Banning of the challenged and similar advertising, and countering mootness arguments
    • Requiring corrective advertising
    • Instituting product recalls
    • Disgorging profits
    • Obtaining compensation for lost profits
    • Examining circumstances in which attorneys’ fees have been awarded
  • Discussing the potential impact of the Supreme Court decision in POM Wonderful v. Coca-Cola
    • Evaluating whether the scope of potential competitor litigants has been expanded and to what extent the decision impacts other industries
    • Analyzing the intersection of FDA labeling requirements, Lanham Act litigation, and consumer class actions
  • Avoiding post-Lanham litigation class actions