• Sound and Fury of Software Providers Held to Signify Nothing
  • September 28, 2011 | Author: Richard J. Leighton
  • Law Firm: Keller and Heckman LLP - Washington Office
  • Lengthy false advertising suits between software providers were thrown out of court recently by a court that issued a sarcastic 43-page opinion on the multitude of allegations and the absence of evidence of Lanham Act liability.*


    The competing parties provide services to politicians and political organizations.

    Defendant advertised that it served "only Democrats and their allies" and made similar partisanship assertions. However, under an agreement with a reseller, Defendant's rebranded software was offered to organizations that contributed to both Republicans and Democrats.

    Based on this, Plaintiff alleged that Defendant's claims to serve only Democrats and their allies were literally false, false by necessary implication, and misleading.

    Defendant counterclaimed that Plaintiff had misleadingly advertised that Defendant did not have "instruction manuals" and falsely or misleadingly stated that Defendant's software cost "approximately the same" as Plaintiff's.

    Neither party offered a consumer perception survey, expert testimony, or customer testimony.


    Defendant's claims to serve "only Democrats and their allies" were not literally false, the court found. The testimony on the meaning of "allies" provided "little clarity," but dictionary definitions satisfied the court that those who contribute to both parties could be "allies" of both.

    Nor were the claims false by necessary implication, because the record contained a "cloud of ambiguity" as to what was conveyed in the challenged ads. That is, the challenged claims were susceptible to more than one interpretation. In the absence of credible evidence, this ambiguity also prevented a finding of intent to deceive, inherent deception, or likely deception.

    The court gave short shrift to Defendant's counterclaim, basically saying in few words that it was not supported by credible evidence.


    * Aristotle International, Inc. v. NGP Software, Inc., No. 05-1700 (D. D.C. unsealed and filed Sept. 21, 2011).