Foboha GMBH v. Gram Tech., Inc., No. 08 C 969, 2008 WL 4619795 (N.D. Ill. Oct. 15, 2008) (Grady, J.).

Judge Grady denied defendants’ (collectively “Gram”) Fed. R. Civ. P. 12(b)(6) motion to dismiss plaintiffs’ (collectively “Foboha”) Lanham Act unfair competition and related state law claims. Foboha alleged that Gram made false and misleading statements about Gram’s patent and about Foboha’s alleged infringement of the patent. In particular, Gram allegedly claimed that its technology was patented while its application was still being processed and that Gram made false statements about the status of the reexamination filed by Foboha. The Court held that Foboha’s claims were governed by Fed. R. Civ. P. 9(b)’s heightened pleading requirements because they were based upon Gram’s allegedly false and misleading statements. And at least for the statements allegedly made about the patent during reexam, Foboha met the heightened standard by explaining what statements were made, when and where they were made, who made them and how they were made.

The Court did, however, hold that Gram’s direct communications, in person or in letters to individuals, did not constitute commercial advertising and, therefore, did not constitute Lanham Act unfair competition. But Gram’s statements on its website and press releases could constitute commercial advertising.