American Ass'n of Orthodontists v. Yellow Book Usa, 04-3521.
| Decision Date | 24 January 2006 |
| Docket Number | No. 04-3521.,04-3521. |
| Parties | AMERICAN ASSOCIATION OF ORTHODONTISTS, Plaintiff-Appellant, v. YELLOW BOOK USA, INC., Defendant-Appellee. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Richard B. Walsh, Jr., argued, St. Louis, MO (Neal F. Perryman, Michael J. Hickey, and Bridget G. Hoy, on the brief), for appellant.
Mark S. Sableman, argued, St. Louis, MO (Harry W. Wellford, Jr., and Sharon Rosenberg, on the brief), for appellee.
Before LOKEN, Chief Judge, BEAM and MELLOY, Circuit Judges.
Yellow Book USA, Inc., publishes "yellow pages" directories that list, by category, businesses and professionals that pay for the listings. During the time in question, Yellow Book publications in Missouri included separate listings for "Dentists," "Dentists-Orthodontists," and "Orthodontists (Straightening-Braces)." The American Association of Orthodontists ("AAO"), a trade organization representing orthodontists, commenced this action for injunctive relief, alleging that Yellow Book is violating the Lanham Act, 15 U.S.C. § 1125(a), by listing general dentists under the categories "Dentists-Orthodontists" and "Orthodontists (Straightening-Braces)" in Yellow Book publications. The district court1 dismissed the complaint on the ground that AAO lacks Lanham Act standing, and AAO appeals. We review a dismissal for lack of standing de novo, accepting as true the material allegations of the complaint and construing the complaint in favor of the plaintiff. Gardner v First Am. Title Ins. Co., 294 F.3d 991, 993 (8th Cir.2002). We affirm.
The Statute. As relevant here, 15 U.S.C. § 1125(a) provides:
(1) Any person who, on or in connection with any goods or services ... uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which —
(A) is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person, or
(B) in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person's goods, services, or commercial activities, shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act.
Subsection (a)(1)(A) is referred to as the false endorsement prohibition; subsection (a)(1)(B) is referred to as the false advertising prohibition. In general, the statute is broadly construed as "making certain types of unfair competition federal statutory torts." Home Builders Ass'n v. L & L Exhibition Mgmt., Inc., 226 F.3d 944, 947 (8th Cir.2000) (quotation omitted).
The Complaint. We will briefly summarize the most significant allegations in AAO's complaint:
— AAO
— It is improper under the American Dental Association's Principles of Ethics and Code of Professional Conduct "for a General Dentist to announce a specialty when the General Dentist has not completed the requisite education relative to such specialty."
— Yellow Book is advertising General Dentists under its "Dentists-Orthodontists" and "Orthodontists (Straightening-Braces)" listings.
— Such designations are false "in that General Dentists who have not undergone specialized training including completion of an accredited orthodontic program are not Orthodontists and should not be advertised as Orthodontists."
— This false advertising is likely to confuse and deceive the public and irreparably injures AAO and its member orthodontists.
— AAO seeks preliminary and permanent injunctive relief restraining Yellow Book from violating 15 U.S.C. § 1125(a) "by listing General Dentists as Orthodontists in any Yellow Book or other publication ... when they have not completed an accredited orthodontic program."
AAO asserts on appeal, as it did in the district court, that Yellow Book's listings violate both the false endorsement prohibition of 15 U.S.C. § 1125(a)(1)(A) and the false advertising prohibition of § 1125(a)(1)(B).
The Complaint Fails To State a Lanham Act Claim. This is not a typical Lanham Act claim. AAO's complaint does not allege that a "general dentist" who requests to be included in Yellow Book listings for orthodontists is falsely claiming endorsement by AAO, nor that the dentist is pretending to be an AAO member. Rather, AAO complains because the general dentist who is included in Yellow Book's orthodontist listings is holding himself out as qualified to perform orthodontics services (i.e., to compete with AAO members) when he has not obtained an additional education pedigree that AAO considers to be a necessary qualification.
Dentistry is a profession heavily regulated by the States, including Missouri. Orthodontics is a sub-specialty of the dental profession. The complaint does not allege that it is illegal in Missouri for a general dentist to perform orthodontic services unless he or she has completed "an accredited orthodontic program." Thus, AAO seeks an injunction that would usurp the function of the state licensing authorities to determine who may advertise themselves as qualified to provide this type of professional dental services. AAO cites no authority for the proposition that the Lanham Act confers this regulatory authority on the federal courts. We are confident Congress did not intend to do so.
Absent a specific state law prohibition against general dentists holding themselves out as orthodontists, the legal determination that any particular dentist is guilty of false advertising by requesting inclusion in the Yellow Book listings for orthodontists requires a detailed analysis of that dentist's qualifications and experience. As no general dentist is before the court, the injunctive relief requested by AAO "in gross" may not be granted.
For these reasons, the complaint fails to state a claim upon which the relief requested can be granted. Therefore, the district court properly granted Yellow Book's Rule 12(b)(6) motion to dismiss.
If the Complaint States a Claim, AAO Lacks Standing. Standing includes both a constitutional and a prudential component. The constitutional requirement, grounded in Article III case or controversy limitations, consists of three elements:
First, the plaintiff must have suffered an injury in fact — an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of — the injury has to be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court. Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by...
To continue reading
Request your trial
-
Dolls, Inc. v. City of Coralville, Iowa
...of the challenged sections of the City's ordinances will redress some alleged harm. See, e.g., Am. Ass'n of Orthodondists v. Yellow Book USA, Inc., 434 F.3d 1100, 1103-04 (8th Cir.2006) (concluding, that to qualify for injunctive relief, an injunction barring the conduct alleged must redres......
-
Syngenta Seeds Inc. v. Bunge North Am. Inc.
...that is, section 43(a) of the Lanham Act, prohibits false advertising. See American Ass'n of Orthodontists v. Yellow Book USA, Inc., 434 F.3d 1100, 1103 (8th Cir. 2006). Specifically, it provides as follows:§ 1125. False designations of origin, false descriptions, and dilution forbidden(a) ......
-
Syngenta Seeds, Inc. v. Bunge North America, Inc.
...the United States Code, that is, section 43(a) of the Lanham Act, prohibits false advertising. See American Ass'n of Orthodontists v. Yellow Book USA, Inc., 434 F.3d 1100, 1103 (8th Cir.2006). Specifically, it provides as follows: § 1125. False designations of origin, false descriptions, an......
-
Mahaska Bottling Co. v. PepsiCo Inc.
...of origin claims under subsection (A) and false advertising claims under subsection (B). E.g., Am. Ass'n of Orthodontists v. Yellow Book USA, Inc., 434 F.3d 1100, 1102 (8th Cir. 2006) ; Auto–Chlor Sys. of Minn., Inc. v. JohnsonDiversey, 328 F.Supp.2d 980, 1018 (D. Minn. 2004). Mahaska does ......
-
Private Remedies for False or Misleading Advertising: Lanham Act Section 43(a)
...under Lexmark . 35 For example, 32. Id . at 1395. 33. Id . at 1388. 34. Id . at 1390. 35. Am. Ass’n of Orthodontists v. Yellow Book USA, 434 F.3d 1100, 1103 (8th Cir. 2006) (holding that the American Association of Orthodontists (AAO) lacked constitutional standing to sue the Yellow Pages b......
-
Table of Cases
...37 F.3d 996 (3d Cir. 1994), 27 Amarel v. Connell, 102 F.3d 1494 (9th Cir. 1997), 98, 106 Am. Ass’n of Orthodontists v. Yellow Book USA, 434 F.3d 1100 (8th Cir. 2006), 210 Am. Booksellers Ass’n v. Barnes & Noble, 135 F. Supp. 2d 1031 (N.D. Cal. 2001), 172 Am. Booksellers Ass’n v. Random Hous......
-
Handling Investigations and Litigation
...would be adversely affected by the action it challenged, it had no standing to sue); Am. Ass’n of Orthodontists v. Yellow Book USA, 434 F.3d 1100, 1103 (8th Cir. 2006) (affirming decision that trade association lacked standing because 3. Association as Third Party Government and private pla......