Judge William Skretny
Inserts in the Buffalo News are among the various types of advertising space sold by the paper. According to the News, the more inserts and the greater the name recognition of other advertisers in the insert package, the more valuable insert placement becomes, and the more an advertiser will pay for inclusion in an insert package. Community newspaper publisher Metro Group also uses inserts and competes with the News for advertisers. Under the Lanham Act, the News charged Metro Group and marketing firm ADS Media Group with falsely overstating the advertising they can deliver in their insert packages, thus diverting potential advertisers from the News. The court dismissed the News’ Lanham Act §43(a) false advertising claim—the only federal cause of action—and declined jurisdiction over its state law-based claims. In finding the first element of the five outlined in Merck Eprova v. Gnosis not met, the court deemed the News’ claims akin to those in Mylan Laboratories v. Matkari and held Metro’s and ADS’s actions not prohibited under the Lanham Act. The mere presence of extra inserts in their sample packages could not be considered a description or representation under the Lanham Act.
