Chilling Effects
Home Weather Reports Report Receiving a Cease and Desist Notice Search the Database Topics
Monitoring the legal climate for Internet activity
Chilling Effects
 Chilling Effects Clearinghouse > Notices > HP C&Ds Sun over President's blog (NoticeID 1459, Printer-friendly version

HP C&Ds Sun over President's blog

September 28, 2004


Sender Information:
Hewlett Packard Company
Sent by: [Private]
Cupertino, CA, 95014, US

Recipient Information:
Sun Microsystems, Inc.
Santa Clara, CA, 95054-177, USA

Sent via:

Dear [Private]

Hewlett-Packard Company has recently learned of the follwing misstatements of facts appearing on Sun


FAQ: Questions and Answers

[back to notice text]

Question: What is Section 43(a) of the Lanham Act?

Answer: The Lanham Act is the basic federal trademark and unfair competition law. Section 43(a) (15 U.S.C. 1125(a)) is intended to protect consumers and competitors against false advertising and false designations of origin.

The law allows for suit against someone who makes false claims about its own or a competitor's products.

Sec. 1125. False designations of origin, false descriptions, and dilution forbidden

(a) Civil action

(1) Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which--

(A) is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person, or

(B) in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person's goods, services, or commercial activities, shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act.

[back to notice text]

Question: What is trade libel?

Answer: Trade libel is defamation against the goods or services of a company or business. For example, saying that you found a severed finger in a particular company's chili (if it isn't true).

Along with the ordinary elements of a defamation claim, (see What are the elements of a defamation claim?) the person suing must prove money damages.

Defenses include 1) that the statement was true; 2) that the statement was opinion, not fact; and 3) that the plaintiff did not suffer monetary damage.

[back to notice text]

Question: What defenses may be available to someone who is sued for defamation?

Answer: There are ordinarily 6 possible defenses available to a defendant who is sued for libel (published defamatory communication.)
1. Truth. This is a complete defense, but may be difficult to prove.
2. Fair comment on a matter of public interest. This defense applies to "opinion" only, as compared to a statement of fact. The defendant usually needs to prove that the opinion is honestly held and the comments were not motivated by actual "malice." ( Malice means knowledge of falsity or reckless disregard for the truth of falsity of the defamatory statement.)
3. Privilege. The privilege may be absolute or qualified. Privilege generally exists where the speaker or writer has a duty to communicate to a specific person or persons on a given occasion. In some cases the privilege is qualified and may be lost if the publication is unnecessarily wide or made with malice.
4. Consent. This is rarely available, as plaintiffs will not ordinarily agree to the publication of statements that they find offensive.
5. Innocent dissemination. In some caes a party who has no knowledge of the content of a defamatory statement may use this defense. For example, a mailman who delivers a sealed envelope containing a defamatory statement, is not legally liable for any damages that come about from the statement.
6. Plaintiff's poor reputation. Defendant can mitigate (lessen) damages for a defamatory statement by proving that the plaintiff did not have a good reputation to begin with. Defendant ordinarily can prove plaintiff's poor reputation by calling witnesses with knowledge of the plaintiff's prior reputation relating to the defamatory content.

Topic maintained by Chilling Effects

Topic Frequently Asked Questions (and Answers)
Chilling Effects Clearinghouse -
disclaimer / privacy / about us & contacts