This'll take several posts...
METHVEN & ASSOCIATES
BRUCE E. METHVEN, ESQ. (Bar No. 095486)
LOUISE M. QUINTARD (Bar No. 106230)
ERIC K. FERRARO (Bar No. 172699)
2232 Sixth Street,
Berkeley, CA 94710
(510) 649-4019
Fax: (510) 649-4024
Attorneys for Defendants
JEFFREY S. MITCHELL, WILLIAM
ULRICH and JANICE SHELL
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION
BUSINESS WIRE, a California corporation,
Plaintiff,
v.
JEFFREY S. MITCHELL, an individual; WILLIAM ULRICH, an individual; JANICE SHELL, an individual,
Defendants.
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Case No. C 99-1987 EDL
MEMORANDUM OF POINTS AND AUTHORITIES SUPPORTING DEFENDANTS' SPECIAL MOTION TO STRIKE PURSUANT TO CALIFORNIA CODE OF CIVIL PROCEDURE SECTION 425.16
Time: 9:30 a.m.
Date: July 27, 1999
Place: Courtroom E, 15th Floor
TABLE OF CONTENTS
I. FACTUAL BACKGROUND Page 1
II. THE PLAINTIFF'S COMPLAINT SHOULD BE STRICKEN PURSUANT TO CALIFORNIA'S ANTI-SLAPP STATUTE BECAUSE IT IS AN ATTEMPT TO CHILL LEGITIMATE FREE SPEECH Page 5
A. The California Anti-SLAPP Procedures Apply in Federal Court Page 5
B. Where Defendants Have Communicated in a Public Forum on an Issue of Public Interest, Each Claim Against Them Must Be Stricken Unless the Plaintiff Establishes That It Is Probable That the Plaintiff Will Prevail on the Claim Page 5
III. THE DEFENDANTS' WEB SITE CONSTITUTES STATEMENTS MADE IN A PUBLIC FORUM IN CONNECTION WITH AN ISSUE OF PUBLIC INTEREST Page 7
IV. IT IS NOT PROBABLE THAT BUSINESS WIRE WILL PREVAIL ON ITS CAUSES OF ACTION Page 8
A. There Is No Violation of the Federal "False Advertising" Statutes Page 8
1. There Was No False Designation of Origin and No Likelihood of Confusion Between Business Wire and Webnode Page 8
2. The Prohibitions of Section 1125(a) Apply Only to Commercial Speech, Which Is Not Present Here Page 9
B. Federal Trademark Dilution Requires Both Dilution and Commercial Use–And Neither is Present Here Page 10
C. There Was No Federal Trademark Infringement Because Business Wire Consented to the Use and Because There Is No Likelihood of Confusion. Page 11
D. There Was no California Trademark Dilution Because There Was No Weakening Of the Mark or Commercial Use Page 12
E. There Simply Was No Breach of Contract at All Page 13
F. Business Wire Was Not Defrauded Because the Defendants Made No Representations Regarding the Press Release and Because Business Wire Made No Reasonable Reliances Page 14
G. The Defamation Claim Cannot Stand Because There Is No Provably False Factual Assertion and Because Truth Is an Absolute Defense Page 15
1. There Is No Provably False Factual Assertion in the Statement Made by the Defendants Page 16
2. The Gist of "Parody Dilutes Our Trademark But Fraud Does Not" Is True With Respect to Business Wire Page 17
H. The California Unfair Competition Claims Still Fail to Meet the First Amendment Problems Page 19
I. The Civil Conspiracy Claim Fails Because Business Wire Cannot Prove It Is Probable That It Will Prevail on the Underlying Tort Causes of Action Page 20
V. THE DEFENDANTS SHOULD RECEIVE THEIR ATTORNEYS FEES BASED ON THE CALIFORNIA ANTI-SLAPP STATUTE Page 21
VI. CONCLUSION Page 21
TABLE OF AUTHORITIES
Cases
Applied Equipment Corp. v. Litton Saudi Arabia Ltd., 7 Cal.4th 503 (1994) Page 20
Blatty v. New York Times Co., 42 Cal.3d 1033 (1986) Page 19
Briggs v. Eden Council for Hope and Opportunity, 9 Cal.4th 1106 (January 21, 1999) Page 6
David Wojnarowicz v. American Family Association, 745 F. Supp. 130 (S.D. N.Y. 1990) Page 9
Elvis Presley Enterprises, Inc. v. Capece, 141 F.3d 188 (5th Cir. 1998) Page 8, Page 9
Emde v. San Joaquin County etc. Council, 23 Cal.2d 146 (1943) Page 17
Gantry Const. Co. v. American Pipe & Const. Co., 49 Cal.App.3d 186 (1975) Page 17
Gill v. Hughes 227 Cal.App.3d 1299 (1991) Page 17
Greenbelt Pub. Assn. v. Bresler, 398 U.S. 6 (1970) Page 16
Hustler Magazine v. Falwell, 485 U.S. 46 (1988) Page 16
L.L. Bean, Inc. v. Drake Publishers, Inc., et al., 811 F.2d 26 (1st Cir. 1987) Page 12
Letter Carriers v. Austin, 418 U.S. 264 Page 16
Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990) Page 16, Page 17
Moyer v. Amador Valley J. Union High School Dist., 225 Cal.App.3d 720 (1990) Page 17
New Kids on the Block v. News America Publishing, 971 F.2d 303 (9th Cir. 1992) Page 9, Page 11
U.S., ex rel., Newsham et al. v. Lockheed Missiles & Space Company, Inc., 171 F.3d 1208 (9th Cir. March 24, 1999) Page 5
Youst v. Longo, 43 Cal.3d 64 (1987) Page 20
Zhao v. Wong, 48 Cal.App.4th 1114 (1996) Page 6
Statutes
15 U.S.C. Section 1114 Page 11
15 U.S.C. Section 1125(a) Page 8, Page 9, Page 11
15 U.S.C. Section 1125(c)(1) Page 10, Page 11
California Business & Professions Code Section 14330 Page 12
California Business & Professions Code Section 17200 Page 19
California Civil Code Section 1654 Page 14
California Code of Civil Procedure Section 425.16 Page 5, Page 21
California Code of Civil Procedure Section 425.16(b) Page 5, Page 8
Other Authority
BAJI (8th ed.), 7.07 Page 17
I. FACTUAL BACKGROUND
Business Wire–a large company–is suing these three individuals because a) they embarrassed Business Wire by showing that it distributes press releases without making any checks to see if the content of the press releases is true, and b) they subsequently poked fun at Business Wire after Business Wire informed them of its displeasure. Essentially, Business Wire is trying to punish the defendants for legitimately exercising their First Amendment rights in trying to educate the public about Internet investment scams–and in trying to show that just because a press release is distributed through a major company it is not necessarily true.
The defendants are members of a loosely affiliated group of people known as Fly By Night Associates, or FBN for short. The purpose of this group is to educate the public about investment scams on the Internet. Among other activities, for the last three years FBN Associates has pulled educational April Fool's Day pranks. In 1998, for example, the group created a Web site for a fictitious company supposedly possessing the cure to the Year 2000 (Y2K) computer bug; among others, the Wall Street Journal wrote about this endeavor. In addition, Fortune and Bloomberg have written articles about the defendants' work in exposing investment scams. (See Declaration of William Ulrich, Paragraph 2, for details.)
This year's prank also involved a Web site dedicated to a make-believe company. The supposed "investment opportunity" contained several clues–beyond the April 1 byline date--for those who scrutinized it. In what was billed as a "real estate of the Internet" deal, on that Web site a bogus company called Webnode, supposedly based in Safety Harbor, Florida (from the phrase "safe harbor" used to identify certain securities law exemptions), claimed it had received a contract from the government to raise $4 billion to set up a fiber-optic system for the Next Generation Internet (NGI). Webnode further claimed that it would be selling 40 million nodes (a point for data to travel along the Internet) for $100 each, although in fact the NGI currently only has dozens, not millions of nodes. In any case, this is analogous to offering to sell pieces of the Brooklyn bridge. Another tip-off was that the statement that Webnode's parent company, BZE, was engaged, among other things, in "armaments deployment", a role played only by militaries and organizations like NATO. (See Declaration of William Ulrich, Paragraph 3, for details.)
The Web site was set up so that no one could actually send the fictitious company any money. More specifically, there was not even any address on the Web site to which people could have sent funds, and no credit card information was collected. Neither FBN Associates nor any of the defendants received any money from investors trying to invest in Webnode. Moreover, neither FBN nor any of the defendants collected "personal information" as alleged in the Complaint (Complaint, p. 5, line 6). The forms on the site simply asked people to give a user name and password; they could give any name they chose to give, and there was no way to tell if they were who they said they were. The site did NOT ask for Social Security numbers, credit card numbers or any other form of identification. (See Declaration of William Ulrich, Paragraph 4, for details.)
FBN Associates created a press release with an April 1 date to advertise this Web site. The plaintiff, Business Wire, distributes press releases for a fee. FBN Associates paid Business Wire its fee and submitted the press release to Business Wire. Business Wire–not any of the defendants--edited the press release and added the Business Wire byline! The Web site that FBN created incorporated the press release as edited by Business Wire, including the byline. FBN had the right to do this: According to Business Wire itself, the contact person for the entity submitting the press release (and not Business Wire) controls copies that can be made of the press release:
Requests to copy, circulate or further distribute a single news release that has been previously distributed by Business Wire (other than copying for the limited purpose of an individual user's reference) should be submitted to the contact person identified in the release.
(See Declaration of William Ulrich, Paragraph 5, for details.)
The punch line came on April 2, when a message appeared on the WebNode.com site revealing that everything had been fictitious. FBN Associates changed the Web site by prominently placing text at the top telling people to "read the shocking, compelling story behind one of 1999's most extraordinary internet plays. This little button leads to the real truth about Webnode!" When the button was pressed, it led to a Web page proclaiming "April Fools!" in large lettering. However, even before the April Fools announcement was posted, FBN Associates told anyone who called the telephone number on the press release that this was a prank. One such person was Ted Jackovics of the Tampa Tribune. (See Declaration of William Ulrich, Paragraph 6.)
By then, more than 1,000 investors had e-mailed inquiries about the company, some asking about investment opportunities. Also, Wired, a popular online news magazine, took the press release as truth and published a story. The magazine issued a correction the next day, congratulating the pranksters and expressing regret that it had been taken in by the gag. (See Declaration of William Ulrich, Paragraph 7, for details.)
Business Wire apparently felt embarrassed and decided to take action. First, Business Wire sent a letter demanding that use of the "Business Wire" byline on the Web site (which was a duplicate of the press release where Business Wire itself had added the "Business Wire" byline) be dropped. As a result, the Web site byline was changed to "Bidness Wire" instead; this was intended as parody. Business Wire then demanded that this be changed as well. At that point, FBN dropped the byline entirely and added an extensive introduction to the Web site poking fun at Business Wire by stating in myriad ways that Business Wire was not associated with the site. (See Declaration of William Ulrich, Paragraph 12, for details.) This introduction, with subsequent minor alterations from the original, reads as follows:
note: In an effort to comply with the wishes of Business Wire, and ensure that Business Wire fully understands our sincere intention to maintain a strong and healthy business relationship with Business Wire, thus fostering a more gentle environment for Business Wire to operate within, the reference to Business Wire which formerly occupied the blank space below:
[reference deleted]
¼has now been removed per Business Wire's request, as referenced by The Federal Lanham Act, 15 U.S.C. § 1051 and 15 U.S.C. §§ 1114, 1125 (c), cited by the Business Wire legal counsel. We sincerely regret any inconvenience this now-deleted reference to Business Wire has caused to Business Wire, and wish Business Wire to know that in the future, all further references to Business Wire, be they possible anticipated references to Business Wire, or actual references to Business Wire, shall be first referred to Business Wire with the intention of seeking the appropriate Business Wire permissions or Business Wire approvals from the interested parties at Business Wire, or the representatives of Business Wire that Business Wire deems appropriate or qualified to make judgements about the acceptability of such references to Business Wire, and/or any parties Business Wire should wish to hold responsible for said judgement about such references to Business Wire, which references include the aforementioned reference to Business Wire (which reference has now been deleted at the request of Business Wire), and further, we wish Business Wire to know that any other references to Business Wire that Business Wire may find relevant to Business Wire, or anything else in the known universe that may be of interest to Business Wire, or the representatives of Business Wire, or any other parties related in any way to Business Wire, will be immediately referred to Business Wire should we discover any such references relating to Business Wire, and that in the event a representative of Business Wire is not available, any such references to Business Wire shall be conveyed to any party that Business Wire should adjudicate as being appropriate for the transmission of any such references to or about Business Wire.
Webnode agrees to not corrupt, debase, degrade, defile or otherwise emasculate the trademarked phrase Business Wire in any way shape or form that may hurt the feelings of Business Wire. We also agree to cease, desist, and refrain from using either the word Business or Wire in any further Webnode press releases, as in No-Sense-Of-Humour-Wire, No-Monkey-Business Wire, or even Business Tuna, as these may still cause the misconception that we meant Business Wire.
Webnode further agrees to cogitate, contemplate, and deliberate before using other potentially objectionable, offensive or odious phrases like Big Fat Humourless Tuna in the slim, remote or distant chance they denote, connote, or otherwise imply a reference to Business Wire. It is possible that the word Rhubarb may not cause any misconceptions as a reference to Business Wire, but just to be safe, we won't use that either. To avoid any other potential dilution of the Business Wire trademark, we especially agree to forego the use of the phrase Parody Dilutes Our Trademark But Fraud Does Not. Thank You.
(Declaration of William Ulrich, Paragraph 14.)
Business Wire responded by suing the defendants.
According to a statement made by an Executive Vice President of Business Wire in an article by Jason Anders in The Wall Street Journal Interactive Edition titled "Business Wire's Lawsuit Rattles Message Boards," it was these subsequent changes to the Web site--and not the original post--that led to the lawsuit against these defendants:
Cathy Baron Tamraz, an executive vice president of Business Wire...says legal action could have been avoided had the group not continued to mock the service in recent weeks.
(See Declaration of William Ulrich, Paragraph 13, for details.)
As will be explained in more detail below, Business Wire's complaint should be stricken in its entirety under the California Anti-SLAPP statute (California Code of Civil Procedure Section 425.16), which requires that complaints brought to chill legitimate free speech be terminated.
II. THE PLAINTIFF'S COMPLAINT SHOULD BE STRICKEN PURSUANT
TO CALIFORNIA'S ANTI-SLAPP STATUTE BECAUSE IT IS AN ATTEMPT
TO CHILL LEGITIMATE FREE SPEECH
A. The California Anti-SLAPP Procedures Apply in Federal Court
It is now clear that the California Anti-SLAPP procedures apply in Federal Court. Three months ago the Ninth Circuit expressly made this holding in U.S., ex rel., Newsham et al. v. Lockheed Missiles & Space Company, Inc., 171 F.3d 1208; 1999 U.S. App. LEXIS 5135; 99 Cal. Daily Op. Service 2132; 99 Daily Journal DAR 2753 (9th Cir. March 24, 1999). Specifically, the Court held that, with respect to Section 425.16(b), which is a portion of the Anti-SLAPP statute:
A...plaintiff, for example, after being served in federal court with counterclaims like those brought by LMSC, may bring a special motion to strike pursuant to § 425.16(b). If successful, the litigant may be entitled to fees pursuant to § 425.16(c). If unsuccessful, the litigant remains free to bring a Rule 12 motion to dismiss, or a Rule 56 motion for summary judgment. (Id. at 1217.)
...
For these reasons, we hold that the district court erred in finding that subsections (b) and (c) of California's Anti-SLAPP statute could not be applied to LMSC's counterclaims. (Id. at 1218.)
There is therefore no question that this motion may be brought in this Court. We turn now to the provisions of the statute itself.
B. Where Defendants Have Communicated in a Public Forum on an Issue
of Public Interest, Each Claim Against Them Must Be Stricken Unless the
Plaintiff Establishes That It Is Probable That the Plaintiff Will Prevail on the
Claim
The California Anti-SLAPP statute (California Code of Civil Procedure Section 425.16) states, in pertinent part:
(a) The Legislature finds and declares that there has been a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances. The Legislature finds and declares that it is in the public interest to encourage continued participation in matters of public significance, and that this participation should not be chilled through abuse of the judicial process. To this end, this section shall be construed broadly.
(b)
(1) A cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States or California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.
(2) In making its determination, the court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.
...
(e) As used in this section, "act in furtherance of a person's right of petition or free speech under the United States or California Constitution in connection with a public issue" includes: (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law; (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law; (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest; (4) or any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest. [Emphasis added.]
Although some California appellate courts previously held that the statute only protected acts closely related to "'behavior protected by the Petition Clause'" (Zhao v. Wong, 48 Cal.App.4th 1114, 1124 (1996)), the California Supreme Court recently rejected this view. In Briggs v. Eden Council for Hope and Opportunity 9 Cal.4th 1106 (January 21, 1999), the Court held that:
Even assuming, for purposes of argument, that plaintiffs accurately have characterized ECHO's activities as constituting neither self-interested nor general political speech, we cannot conclude such activities thereby necessarily fall outside the protection of the anti-SLAPP statute. Contrary to plaintiffs' implied suggestion, the statute does not require that a defendant moving to strike under section 425.16 demonstrate that its protected statements or writings were made on its own behalf (rather than, for example, on behalf of its clients or the general public). We agree, moreover, with the court in Braun v. Chronicle that "Zhao is incorrect in its assertion that the only activities qualifying for statutory protection are those which meet the lofty standard of pertaining to the heart of self-government." (Braun v. Chronicle, supra, 52 Cal.App.4th at pp. 1046-1047.)
In short, where 1) defendants have any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest, each cause of action concerning those communications must be stricken unless 2) the Court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.
III. THE DEFENDANTS' WEB SITE CONSTITUTES STATEMENTS MADE IN A
PUBLIC FORUM IN CONNECTION WITH AN ISSUE OF PUBLIC INTEREST
There is no question that the defendants' statements were made in a public forum: the defendants had their press release distributed by Business Wire to major news organizations and posted that press release on their Web site on the Internet, where it was available to the millions of people with Internet access.
Moreover, the defendants' statements were made in connection with an issue of public interest: Internet investment scams. Internet business scams are a substantial problem and a matter of serious public debate. For example, MSNBC–essentially the news Web site for the NBC television network--ran an article titled "Age-old scams find new home on Net". This document may be found at msnbc.com on the Internet. Also, the Federal Trade Commission ("FTC") has posted an FTC Consumer Alert titled "Online Investment Opportunities: 'Net Profit or 'Net Gloss?" which may be found at ftc.gov on the Internet. (Declaration of William Ulrich, Paragraph 18.)
Moreover, the FTC, in an effort to educate the public about Internet investment scams, has done exactly what FBN Associates did: the FTC created a Web site involving a fictitious company to show consumers how easy it is to be misled on the Internet. For an account of this project, see the MSNBC article titled "FTC Takes a Page from Scam Artists". This document may be found at msnbc.com on the Internet. (See Declaration of William Ulrich, Paragraph 19, for details.)
IV. IT IS NOT PROBABLE THAT BUSINESS WIRE WILL PREVAIL ON ITS
CAUSES OF ACTION
Having established that the defendants made a statement or writing in a place open to the public or a public forum in connection with an issue of public interest, the plaintiff must prove that it will prevail on its claims. Subsection (b)(1) of the Anti-SLAPP statute states that:
(b)(1) A cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States or California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim. [Emphasis added.]
The burden of proof on this issue is therefore on the plaintiff, Business Wire. Given the case law and statutes, as discussed below, it is not probable that Business Wire will prevail on its claims. A. There Is No Violation of the Federal "False Advertising" Statutes
1. There Was No False Designation of Origin and No Likelihood of
Confusion Between Business Wire and Webnode
Among other causes of action, Business Wire has alleged violation of the false or misleading description or representation statute (15 U.S.C. Section 1125(a)). Section 1125(a) prohibits a "false designation of origin" that is "likely to cause confusion, or to cause mistake, or to deceive."
First, there was no false designation of origin: the defendants paid Business Wire's fee and Business Wire then added its byline to the press release and distributed it. (Declaration of William Ulrich, Paragraph 19.) The byline correctly showed that Business Wire was the distributor.
Second, there was no likelihood of confusion. Likelihood of confusion requires the probability of confusion. As the Court stated in Elvis Presley Enterprises, Inc. v. Capece, 141 F.3d 188 (5th Cir. 1998) (the "Velvet Elvis" case):
Likelihood of confusion is synonymous with a probability of confusion, which is more than a mere possibility of confusion. See Blue Bell Bio-Med. v. Cin-Bad, Inc., 864 F.2d 1253, 1260 (5th Cir. 1989); see also 3 J. Thomas McCarthy, McCarthy on Trademarks and Unfair Competition § 23:3 (4th ed. 1997). [Id. at 193, esmphasis added.]
Business Wire claims that the appearance of the Business Wire byline on the press release that was posted on the Webnode Web site was "likely to cause confusion and mistake among the public as to whether defendants and their fraudulent press release are affiliated with, licensed, sponsored, endorsed by or otherwise sanctioned by Business Wire." (Complaint, p. 7, lines 14-16.)
However, Business Wire distributes thousands upon thousands of press releases regarding companies (as do other press-release distributors). No reasonable person believes that these companies are somehow connected with Business Wire simply because the "Business Wire" byline appears on them. As the Ninth Circuit remarked in New Kids on the Block v. News America Publishing, 971 F.2d 303, 307 (9th Cir. 1992):
Common sense suggests (consistent with the record here) that a viewer who sees those words flash upon the screen will believe simply that Channel 5 will show, or is showing, or has shown, the marathon, not that Channel 5 has some special approval from the to do so."
Business Wire's claim regarding the defendants' change of the byline from "Business Wire" to "Bidness Wire," is even more tenuous, because "Bidness Wire" is clearly parody. As the Court stated in Elvis Presley Enterprises, Inc. v. Capece, 141 F.3d 188 (5th Cir. 1998) (the "Velvet Elvis" case): "Parody is one such other relevant factor that a court may consider in a likelihood-of-confusion analysis."
Use of the byline "Bidness Wire"–which is obviously an intentional spoof rather than a typographical error concerning "Business Wire"--does not create the required probability of confusion between Business Wire and the Webnode site.
2. The Prohibitions of Section 1125(a) Apply Only to Commercial Speech,
Which Is Not Present Here
Moreover, Section 1125(a) only regulates commercial speech. As the Court stated in David Wojnarowicz v. American Family Association, 745 F. Supp. 130 (S.D. N.Y. 1990) in discussing the specific legislative history behind the current version of the statute:
Notwithstanding that the Act encompasses a broad range of misrepresentations, it is clearly directed only against false representations in connection with the sale of goods or services in interstate commerce. It has never been applied to stifle criticism of the goods or services of another by one, such as a consumer advocate, who is not engaged in marketing or promoting a competitive product or service. Indeed, the legislative history of the amendment crystallizes the coverage of section 43(a):
"Under this proposed change only false or misleading "advertising or promotion" would be actionable, whether it pertained to the advertiser itself or another party. The change would exclude all other misrepresentations from section 43(a) coverage. These others are the type which raise free speech concerns, such as a Consumer Report which reviews and may disparage the quality . . . of products, [and] misrepresentations made by interested groups which may arguably disparage a company and its products . . . . The proposed change in section 43(a) should not be read in any way to limit political speech, consumer or editorial comment, parodies, satires, or other constitutionally protected material. . . . The section is narrowly drafted to encompass only clearly false and misleading commercial speech." S. 1883, 101st Cong., 1st Sess., 135 Cong. Rec. 1207, 1217 (April 13, 1989).
Every instance of the Lanham Act's far-reaching application has been to practices commercial in nature, involving imitation, misrepresentation, or misappropriation in connection with the sale of goods or services by the defendant. [Id. at 142-143, emphasis added.]
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