Facts

Pulse Entertainment Corp. sued Alkiviades David, Hologram USA Inc., and Filmon.com Inc.

PLAINTIFF'S CONTENTIONS:
Plaintiff alleged that it created a lifelike animation of Michael Jackson that was used at the Billboard Music Awards in May 2014. Plaintiff further alleged that defendants were not involved in the creation of the Michael Jackson animation, but that David falsely represented in an interview with CNN that he and Hologram USA did create the animation, as well as the underlying technology, to promote and advertise Hologram USA's competing business. Plaintiff also alleged that defendants re-published the CNN segment in its entirety on several websites owned and/or controlled by defendants to further promote and advertise Hologram USA's competing business. Plaintiff argued defendants' false representations and re-publishing of the CNN segment constituted unfair competition in violation of the Lanham Act, including reverse passing off and false advertising.

DEFENDANTS' CONTENTIONS:
Defendants argued plaintiff brought this action in retaliation to a patent infringement lawsuit filed by Hologram USA against plaintiff. Defendants further argued that plaintiff's suit failed to allege his actions with particularity and also failed to alleged necessary elements for a Lanham Act claim.

Result

The court granted defendants' motion to dismiss with leave to amend. The court found, in part, that the false statements alleged by plaintiff were made by CNN instead of defendants, since they were based on CNN's captions and statements made by the interviewer.

Other Information

According to plaintiff, the court acknowledged that, "by reposting the segment with the interviewer's statement and caption, defendants arguably adopted these false statements." The court further ruled that Lanham Act false advertising claims must be plead with the level of particularity required by FRCP 9, although it acknowledged that the 9th Circuit Court of Appeals has not yet decided the issue of whether such claims are subject to the pleading requirements of FRCP 9. FILING DATE: June 19, 2014.