CTI, doing business as Citadel, competes with EMS in the marketfor composite wrap products used to repair leaking or corroded pipingsystems—Citadel sells Diamond Wrap and EMS now sells I-Wrap, though it used to distribute DiamondWrap. Citadel alleged that EMS’spredecessor removed references to Citadel from advertising materials forDiamond Wrap, reverse engineered Diamond Wrap, then converted users. Citadel asserted various claims, and movedfor partial summary judgment on its Lanham Act literally falseadvertising/Oklahoma Deceptive Trade Practices Act claims.
Citadel has a registered trademark for Diamond Wrap; EMS’spredecessor used several marketing materials referring to “EFS’s Diamond Wrap”instead of “Citadel’s Diamond Wrap,” which a representative admitted wasliterally false and infringed the mark. EMS conceded the violations (not clear on why it conceded materiality),but argued that summary judgment was inapproprate because the misrepresentationsweren’t intentional or malicious. Butintent isn’t a required element of either ODTPA or the Lanham Act, so Citadelwas entitled to summary judgment on liability for these claims. Citadel acknowledged that intent is a factorin assessing likely confusion, though.
Comment: weird. Justshows how disconnecting trademark from false advertising has led to strangedoctrinal follies; there’s no reason this isn’t a straight-up trademark case,other than the frolic and detour of literal v. implied falsity in 43(a)(1)(B)cases.
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