Addressing standing to bring a "false advertising" claim under §43(a) of the Lanham Act, the U.S. Court of Appeals for the Ninth Circuit has confirmed that a plaintiff must show: (1) a commercial injury based upon a misrepresentation about a product and (2) the injury is competitive or harmful to the plaintiff’s ability to compete with the defendant. Jack Russell Terrier Network v. American Kennel Club, Case No. 02-17264 (Ninth Cir. May 17, 2005) (Gould, J.).
Respondent Jack Russell Terrier Club of America (JRTCA) publishes True Grit, a national, bimonthly magazine dedicated to Jack Russell Terriers. Appellants Georgia Fisher and Claudia Sprague, former Jack Russell Terrier breeders, were "blacklisted" in True Grit for competing in JRTCA-sanctioned terrier trials after registering their dogs with the American Kennel Club, a direct violation of JRTCA rules and bylaws. The appellants allege, as a result, other Jack Russell Terrier owners and breeders would not associate with them, breed with their dogs or buy their puppies.
Appellants argued that the publication of their names as "blacklisted" was a false advertisement misrepresenting the quality of their Jack Russell Terriers. Inclusion on the blacklist falsely implied that JRTCA-only terriers are superior to all other Jack Russell Terriers and that those dogs excluded do not meet JRTCA standards. Appellants additionally argued that the ostracism experienced by those "blacklisted" results in economic harm because breeders depend on their dogs’ reputation for quality and on trial awards won at JRTCA events to sell and breed their dogs.
The Ninth Circuit did not bite.
Focusing on the language of §43(a), the Court held that the appellants could not allege they were a competitor of JRTCA that has suffered competitive injury, and, therefore, they had no standing to sue. Accordingly, the Court dismissed upheld the district court’s dismissal of the appellants’ claims against JRTCA.
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