Advertising Disclosure Email Disclosure

Press releases on tests of competing product enjoined as false advertising.

October 1, 2010
Osmose Inc. v. Viance LLC, 11th Cir, No. 09-15563 (07/30/2010)

The U.S. Court of Appeals for the 11th Circuit upheld a district court injunction relating to press releases that falsely represented data as to the quality of treated wood. Viance LLC produces a treatment to protect outdoor wood products from insects, fungus, and decay. When another company, Osmose, Inc., began marketing a competing product, Viance hired an independent scientist and an investigative firm to analyze the competitor's product. Purportedly based on its investigations, Viance issued press releases claiming that Osmose's product "failed to prevent decay." After the investigative firm distanced itself from the press releases by noting, among other things, that its tests were not random, but were based on samples provided to it by Viance, Osmose sued Viance for false advertising under Section 43(a) of the Lanham Act. In upholding the lower court's injunction enjoining Viance from claiming or implying that Osmose's product was inferior, the 11th Circuit held that Osmose could prove literal falsity in the press releases by showing that the studies cited by Viance did not in fact establish the claims in the press releases. The lower court had found that, although the press releases had unambiguously stated that the investigator had raised serious safety concerns about using the Osmose product on wood, the Actual reports explicitly stated that the tests should not be considered as either acceptance or rejection of the wood quality. Thus, the Appellate Court found the evidence supported a conclusion that the claims in the press releases were literally false.

Case Law Alert - 4th Qtr 2010

Affiliated Attorney

Practice Areas

Before you send this email please note:

You are attempting to send email, through a link on our website, to an attorney of Marshall Dennehey Warner Coleman & Goggin or an employee in our firm. Please note that your email may not be treated as confidential and does not create an attorney-client relationship. You should not rely upon the transmission of an email through this website if you are seeking to enter into such a relationship. Until such time as we have agreed to represent you, no information in your email will be treated as confidential. Please contact us directly by telephone at 1.800.220.3308 if it is your intent to seek legal counsel with our firm or convey confidential information.

If it is still your intent to send this email, knowing that it may not be treated as confidential, you may accept our terms of agreement by pressing "OK". If you choose not to accept these terms of agreement you may navigate away from this page by pressing "Cancel."