Dastar Corp. v. Twentieth Century Fox Film Corp., 539 U.S. 23, 8 (2003)

Page:   Index   Previous  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  Next



Opinion of the Court

ning with the Sixth Circuit, unanimously concluded that it "does not merely refer to geographical origin, but also to origin of source or manufacture," Federal-Mogul-Bower Bearings, Inc. v. Azoff, 313 F. 2d 405, 408 (1963), thereby creating a federal cause of action for traditional trademark infringement of unregistered marks. See 4 McCarthy 27:14; Two Pesos, supra, at 768. Moreover, every Circuit to consider the issue found 43(a) broad enough to encompass reverse passing off. See, e. g., Williams v. CurtissWright Corp., 691 F. 2d 168, 172 (CA3 1982); Arrow United Indus., Inc. v. Hugh Richards, Inc., 678 F. 2d 410, 415 (CA2 1982); F. E. L. Publications, Ltd. v. Catholic Bishop of Chicago, 214 USPQ 409, 416 (CA7 1982); Smith v. Montoro, 648 F. 2d 602, 603 (CA9 1981); Bangor Punta Operations, Inc. v. Universal Marine Co., 543 F. 2d 1107, 1109 (CA5 1976). The Trademark Law Revision Act of 1988 made clear that 43(a) covers origin of production as well as geographic origin.4 Its language is amply inclusive, moreover, of reverse passing off—if indeed it does not implicitly adopt the unanimous court-of-appeals jurisprudence on that subject. See, e. g.,

likely to be damaged by the use of any such false description or representation." 60 Stat. 441.

4 Section 43(a) of the Lanham Act now provides: "Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which—

"(A) is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person, or

"(B) in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person's goods, services, or commercial activities, "shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act." 15 U. S. C. 1125(a)(1).

Page:   Index   Previous  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  Next

Last modified: October 4, 2007