A feud between competing hair care product sellers over comments made on Facebook has an important takeaway: just disparaging a competitor on social media can constitute commercial advertising.
In Monat Global Corp. v. Mags Kavanaugh and California Beauty Studios, Inc., the plaintiff alleged that the defendants orchestrated an "internet smear campaign" by posting comments to Facebook that falsely disparaged the plaintiff's products, including by implying that the products can cause balding and scalp irritation. The defendants argued that the comments were not advertising and therefore should not be subject to a Lanham Act claim.
The court held that the social media posts constituted commercial speech even though the posts didn't actually promote any of the defendant's products. The court reasoned that, "even a statement that expressly proposes no transaction might constitute commercial speech if included in an advertisement that mentions a particular product and if profit motivates the statement."
Even a statement that expressly proposes no transaction might constitute commercial speech if included in an advertisement that mentions a particular product and if profit motivates the statement.
http://tushnet.blogspot.com/2018/01/pure-disparagement-by-competitor-is.html
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