Trade Libel

Trade Libel

1. Injurious Falsehood

   • The publisher of a false and disparaging statement that harms the interests of another is liable for any resulting pecuniary loss if the publisher:
     • a: intended to harm the other's interests OR recognized or should have recognized that it was likely to do so, AND
     • b: knew that statement was false or acted in reckless disregard of its truth or falsity (actual malice)
     • Disparagement: is understood to cast doubt upon the quality of another's land, products or services and the publisher intends the statement to cast the doubt, OR the recipient's understanding of it as casting the doubt was reasonable
       • Disparagement vs. Defamation
         • Disparagement: involves property or economic interests, must prove special damages (pecuniary loss)
         • Defamation: involves personal reputation, to be defamatory a disparaging stmt must allege dishonesty, deception or other misconduct, must prove special damages (pecuniary loss)
     • Pecuniary Loss: direct and immediate loss caused by conduct of potential customers, AND expense of counteracting the disparagement

2. Competitors' Privilege

   • A person may make an unduly favorable comparison of the quality of his or her own goods or services with those of a competitor.
     • The person need not believe that his own things are superior to those of the competitor.
     • The comparison may not contain false facts regarding the rival's goods or services.

3. Other defenses:

   • Truth
   • Fair report privilege

4. Lanham Act 43(a)(2)

   • Imposes civil liability on anyone who:
     • in connection with goods or services in commerce,
     • conveys a false or misleading description in advertising or promotions
     • that misrepresents the nature, characteristics, qualities, or geographic origin of her or another's goods, services, or commercial activities
   • Elements of Action under 43(a)(2)
     • False/misleading stmt about defendant's product or another's, actual deception or a tendency to deceive the intended audience, the deception is material, stmt disseminated to general public, stmt is commercial speech, the goods or services traveled interstate commerce, a likelihood of injury to the plaintiff