Simply Green Products Legal Issues, Research Paper Example

Safe Choices, Inc. has to present certain elements in order for their claim of a false designation of origin which is likely to confuse consumers. These elements are embodied in the Lanham Act that defines the requirements for registration of copyrights, trademarks and patents. It also prescribes the requirement for claiming remedies for the violation of intellectual property rights. The false advertisement claim levied against Simply Green Products by Safe Choices, Inc. has to present the following elements in order it to prevail.

False or Misleading Statement of Fact; the plaintiff has the right to recover for statements that are misleading (Diamond & Swann, 2012). Though this statements may be literally true, as in the case of Simply Green, they have a tendency to mislead, deceive or confuse any customer as to the origin and association of products from different entities.

Commercial Advertising and Promotion; the plaintiff has to prove that these misleading statements of fact have been used in commercial advertising or promotion. While commercial promotion or advertising has a considerably broad definition under the Lanham Act, it includes sales presentations to existing and/or potential customers, internet advertising and the use of labels.

Misleads or is likely to mislead in a Material manner; the plaintiff has to provide evidence that the misleading but true statement deceives or is likely to deceive customers in a material way (Williams, 2012). This has to be achieved through the use of extrinsic evidence. However, the extrinsic evidence would not be required in the case where the violation of the Lanham Act is in bad faith or is done willfully.

Competitive and/or Commercial Injury; the plaintiff can use this element in two ways. First, if the plaintiff seeks injunctive relief, they have to only prove threatened competitive and/or commercial injury. However, if the plaintiff seeks recovery of damages, they have to prove actual competitive and/or commercial injury by the advertisement in question.

In light of the elements of the Lanham Act, Simply Green Products is in violation of several elements of the Lanham Act, in essence violating the Lanham Act. Should Simply Green Products continue using the Safepack name, they would be in violation of intellectual property rights held by Safe Choices, Inc. this is evident in the following ways;

Safe Choices, Inc. has clearly shown that it owns the trademark rights to the Safepack name. Safe Choices had registered the Safepack name in 2002, six years before Simply Green Products had commenced operations. Safe Choices, Inc. have both the patent and trademark to the Safepack name.As such, Simply Green Products would be in violation of the Lanham Act should they continue with the use of the Safepack name.

Safe Choices, Inc. has grounds to prove the commercial use of the Safepack trademark name prior to its use by Simply Green Products. Owing to the fact that Safe Choices has been not only using the Safepack name, but sell a product under this name on an online platform (safpack.com), continued use of the Safepack name amounts to violation of the Lanham Act.

Continued use of the Safepack name by Simply Green Products would amount to the continued misleading statement of fact. Safe Choices, Inc. clients could generally be misled to assume or associate Simply Green Products and Safe Choices products. This is in violation of the Lanham Act.

References

Diamond, S. S., & Swann, J. B. (2012). Trademark and deceptive advertising surveys : law, science, and design. Chicago: American Bar Association, Section of Intellectual Property Law.

Pennsylvania Bar Institute. (2011). Legal issues in advertising. Mechanicsburg: Pennsylvania Bar Institute.

Williams, T. M. (2012). False advertising and the Lanham Act : litigating Section 43(a)(1)(b). New York: Oxford University Press.