Cases in Wake of \u3ci\u3eDastar v. Twentieth Century Fox\u3c/i\u3e Continue to Narrow the Scope of a Reverse Passing off Claim

In 2003, the United States Supreme Court decided Dastar Corp. v. Twentieth Century Fox Film Corp., narrowing the scope of protection under the federal Lanham Act for “reverse passing off.” “Reverse passing off” is derived from the statutory language in § 43(a) of the Lanham Act prohibiting a “false designation of origin” that is likely to cause consumer confusion and generally occurs where one company puts forth another company’s product as its own. A “reverse passing off” claim was also thought to be feasible against one who misrepresented the source of the creative or communicative work embodied in a product. In Dastar, however, the Court limited the ability to bring a claim of “reverse passing off” by narrowly defining the term “origin,” holding that “origin” refers only to the source of the tangible goods and not to the source of any idea, concept or communication embodied in the tangible goods. Following Dastar, several cases have further defined the scope of a “reverse passing off” claim. This Article introduces the concept of “reverse passing off” and then discusses the impact of Dastar and its application in subsequent cases