Last week, a federal district court in Texas held that product claims that an advertiser makes to a consumer after the consumer has already purchased the product could still be considered to be advertising claims.
Boltex Manufacturing v. Galperti involves a dispute between two manufacturers of carbon steel flanges. Plaintiff Boltex alleged that defendant Galperti stamped its products as having been "normalized" and included documentation with the product that made this claim as well. ("Normalization" means that the flanges went through a heat treatment process to increase their machinability and toughness). Boltex alleged that Galperti's flanges were not actually "normalized," however.
Boltex sued, alleging that Galperti's claims violated the Lanham Act. Galperti moved to dismiss on various grounds, including that its statements were not actionable under the Lanham Act. Galperti argued that the statements were "post-sale communications to consumers who have already purchased a product," not advertising claims that influenced a consumer to buy the product.
The court refused to dismiss the case, holding that the product claims could be actionable commercial statements. The court appears to find that the post-sale statements may be actionable because they confirm consumers' beliefs about the qualities of the product, causing them not to return the product.
For further interesting analysis about this case, check out Rebecca Tushnet's blog post about it.
http://tushnet.blogspot.com/2018/04/post-sale-statements-that-prevent
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