On June 3, 2013, the U.S. Supreme Court agreed to review a U.S. Court of Appeals for the Sixth Circuit decision (IP Update, Vol. 10, No. 5) that standing for a false advertising claim could be based on a showing of a “reasonable interest,” and was not limited only to direct competitors. Lexmark International Inc. v. Static Control Components Inc., Case No. 12-873 (Supr. Ct., June 3, 2013).

The question presented for certiorari is as follows:

Whether the appropriate analytic framework for determining a party’s standing to maintain an action for false advertising under the Lanham Act is the factors set forth in Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters (AGC), 459 U.S. 519, 537-45 (1983), as adopted by the U.S. Court of Appeals for the Third, Fifth, Eighth, and Eleventh Circuits; the categorical test, permitting suits only by an actual competitor, employed by the U.S. Court of Appeals for the Seventh, Ninth, and Tenth Circuits; or a version of the more expansive “reasonable interest” test, either as applied by the 6th Circuit in this case or as applied by the U.S. Court of Appeals for the Second Circuit in prior cases.