Crocs Versus Dawgs: The Federal Circuit Holds That Falsely Stating a Product is “Patented” Can Lead to A False Advertising Claim

In Crocs, Inc. v. Effervescent, Inc. et al., the U.S. Court of Appeals for the Federal Circuit recently held that a false advertising cause of action arises where a party falsely claims that it holds a patent on a product feature and advertises the feature in a manner that causes consumers to be misled about the nature, characteristics, or qualities of the product. The Federal Circuit decision has provided a new avenue for false patent marking claims under the Lanham Act that has different requirements and awards of damages than a false marking claim under the Patent Act.