Intellectual Property Law

New Matter SUMMER 2017 Volume 42, Number 2

Standing Still: Denial of Certiorari in Belmora LLC v. Bayer Consumer Care AG Leaves Question on Standing for Foreign Plaintiff’s Unfair Competition Claims

Jones Day

Jones Day

On February 27, 2017, the United States Supreme Court denied certiorari in Belmora LLC v. Bayer Consumer Care AG.1 The denial of certiorari leaves in place a holding from the United States Court of Appeals for the Fourth Circuit that a plaintiff owning only foreign trademark rights has standing to bring unfair competition and false advertising claims against a U.S. trademark owner under Section 43(a) of the Lanham Act.2 The Fourth Circuit’s decision relied on the Supreme Court’s standing analysis for Lanham Act false advertising claims in Lexmark International, Inc. v. Static Control Components, Inc.,3 a case involving two U.S.-based companies asserting U.S.-based rights.

In Lexmark, the Supreme Court held that a plaintiff had standing to assert a false advertising claim if the injury alleged is in the "zone of interests" protected by the Lanham Act and the plaintiff otherwise pleaded proximate-cause.4 Using this test, the Fourth Circuit held that a foreign trademark owner’s claims of deceptive conduct and false advertising fell within the zone of interests protected by the Lanham Act, and that the foreign trademark owner sufficiently pleaded proximate causation.5

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