E-Mail Communication as "Advertising and Promotion" Under the Lanham Act: Analogy to Offline Cases and Limited New Precedents

Among other things, the Lanham Act sec 43(a)(1) prohibits false or deceptive statements in "commercial advertising or promotion" and provides for a private right of action by any aggrieved party, including consumers and competitors. "Offline" precedents that do not involve e-mail but rather videos, letters, and oral communications sent to a small number of customers indicate that in analyzing communications between a seller and buyer in the context of the Lanham Act, the courts are concentrating on two primary things: the nature of the communication and the number of people in the relevant market to whom the communication is sent. These courts' reasoning can serve as a guide for the wary "online" seller to gauge whether its e-mail communications might be considered "advertising and promotion" under the Lanham Act. This analysis would allow a seller to better assess the risk of liability of sending such e-mail communications to prospective buyers.