This article suggests that the recent Lexmark decision, while resolving the confusion relating to Lanham Act standing requirements, does nothing to protect those most vulnerable—the consumers. Congress must explicitly declare that consumers have standing under the Lanham Act when they have been damaged by purchasing falsely represented goods or services. Section I provides a history of the Lanham Act and illustrates how different courts initially allowed and then precluded consumers from bringing claims under Section 43(a)’s “any person” language. Section II critiques the opinions that have found no consumer standing, including the Supreme Court’s recent Lexmark decision. Section III highlights the problems with how the Lanham Act is currently enforced and the lack of acceptable options for injured consumers. Section IV suggests Congress clarify the proper interpretation of the Lanham Act to include consumer standing to resolve these shortcomings.
Jeremy Rovinsky, Troubleshooting Legal Malfunction: Lexmark and Consumer Standing Under the Lanham Act, 48 J. Marshall L. Rev. 453 (2015)