Wednesday, December 30, 2009

Defamation Lawyer: Traverse Internet Law on Defamation. November, 2009.

Defamation Lawyer Disclaimer

The facts are unproven allegations of the Plaintiff and all commentary is based upon the allegations, the truthfulness and accuracy of which are likely in dispute.


HEARTLAND AND PAYMENT SYSTEMS, INC. v. VERIFONE HOLDINGS, INC.
DISTRICT OF NEW JERSEY (TRENTON)
3:09-CV-05654
FILED: 11/06/2009

It is well advised prior to publishing derogatory or negative information about a competitor to have your communication and anticipated business process reviewed by legal counsel. It is very likely that VeriFone went through such a vetting process and is prepared to vindicate itself at a great expense. VeriFone can afford to do so. Most small or mid-size businesses can’t. Consider avoiding the gray area and keep in mind that the more aggressive your business tactics the more likely you will have to incur legal costs defending those very practices.

VeriFone is the single largest supplier of “point of sale” terminals in the United States. VeriFone manufactures “point of sale” terminals stocked by the Plaintiff and sells or licenses the use of the units to its customers nationwide. The Plaintiff alleges that VeriFone published false information in a press release that raised issues about Heartland’s reliability, falsely claimed that a pending patent dispute would result in “down time” for Heartland’s credit card processing customers, and offered a website containing the “Heartland” name in its URL requesting Heartland’s customers to enter personally identifiable information and account information in order to register online and stay up to date on the latest developments. The Plaintiff claims that VeriFone has repeated the false information from its press release in an open letter from VeriFone’s CEO.

The lawsuit claims trademark infringement, violation of the Anticybersquatting Protection Act, and false advertising. Plaintiff requests that the Defendant be preliminarily and permanently enjoined from using Heartland’s trademarks, operating the infringing website or telephone service, issuing any further press releases or letters discussing Heartland, contacting any persons who received the press release or open letter, or engaging in any other acts intended to harm Heartland’s business reputation or confuse customers. The prayer for relief includes requests for compensatory damages, statutory damages, and legal fees, interest and costs. Traverse Internet Law Cross-Reference Number 1379.


KING PHARMACEUTICALS, INC., ET AL. v. ZYMOGENETICS, INC., ET AL.
EASTERN DISTRICT OF TENNESSEE (GREENVILLE)
2:09-CV-00244
FILED: 11/02/2009

The Federal Trade Commission passed, effective December 1, 2009, a broad range of requirements for “product review” websites. Accepting the Plaintiffs’ claims as true, this case is a classic example of potentially misleading “comparative advertising” that is so prevalent on Internet product review sites. FDA approved drugs, and related issues such as false advertising, are governed by the food and drug administration’s policies, practices, regulations, and laws. It’s interesting to note that the Plaintiffs claim the Defendants have been falsely disparaging its product since 2005, the FDA has been involved in reprimanding the Defendants for their advertising, yet four years later no legal action was instituted by the FDA. Don’t expect the same passive approach by the Federal Trade Commission to non-compliance by affiliate marketers with the new economic disclosure and endorsement requirements.

The Plaintiffs and Defendants are competitors in the hemostatic modifier market who both sell topical treatments for bleeding ailments. Both King Pharmaceuticals and the Defendants have FDA approved products. Defendants are alleged to be publishing false statements claiming that its product is more safe than Plaintiffs’, Plaintiffs’ product causes death, and Plaintiffs’ product causes an increase in negative or adverse events.

The lawsuit alleges violation of 15 U.S.C § 1125(a), common law unfair competition, violations of the Tennessee Consumer Protection Act, tortious interference with existing and prospective economic relations, defamation, unjust enrichment, federal trademark infringement, federal unfair competition, false designation of origin and false description, common law trademark infringement, unfair competition, and violations of Tennessee’s Consumer Protection Act. The court has been requested to issue an injunction against the Defendants’ misconduct, an order for destruction of all deceptive materials, an order requiring corrective advertising, an order requiring the takedown of Defendants’ website and AdWords campaigns, and an award of compensatory damages, punitive damages, treble damages, attorneys’ fees and costs, and other relief that the court deems proper. Traverse Internet Law Cross-Reference Number 1378.

1 comment:

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