Burger King Files Lawsuit Against McDonalds Over Game Pieces

From Trademark Blog:

Burger King franchisee alleges that McDonalds is liable for false advertising in connection with statements made by McDonalds not about Burger King but about McDonalds’ own promotions (which in itself was interesting – it turns out that a company that McDonalds paid to run one of its sweepstakes promotions had embezzled winning game pieces, therefore representations made by McDonalds that its sweepstakes was fair, was false – however McDonalds pled an intervening cause defense).
Anyway: given that the Lanham Act accords standing to any person who believes that they are likely to be damaged by the bad act in 43(a), does the BK franchisee have standing:

11th Circuit: No. There is a five factor test in the 3d Circuit case, Conte Brothers, 165 F.3d 221, 225 (3d Cir. 1998) that weights factor such as proximitiy of the bad act to plaintiff’s harm, the speculativeness of the damages, and possibility of duplicative damages, among other factors, and in this situation, found that the franchisee was too far from the action to have standing.

Phoenix of Broward v. McDonalds
, 06-14726 (11th Cir June 22, 2007).

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