Antitrust Law Daily Wrap Up, ADVERTISING—11thCir: Lanham Act Claim Based on False Advertising of Historical Affiliation Rejected, (Dec 19, 2012)

By William Zale, J.D.

A religious order could not pursue a Lanham Act false advertising claim against an ecumenical order and charitable organization (the Florida Priory) for claiming a historical affiliation with the religious order, the U.S. Court of Appeals in Atlanta has ruled (Sovereign Military Hospitaller Order of Saint John of Jerusalem of Rhodes and of Malta v. Florida Priory of the Knights Hospitallers of the Sovereign Order of Saint John of Jerusalem, Knights of Malta, December 18, 2012, Wilson, C.). The Florida Priory’s unequivocally interdenominational nature rendered moot any possibility that the alleged deceptions would influence purchasing decisions, according to the court.

The court found that the district court erred when it admitted the testimony of Nicholas Papanicolaou, the current Prince Grand Master of The Ecumenical Order about historical matters. Papanicolaou neither had “personal knowledge” of the historical facts about which he spoke, nor could offer testimony in the form of an opinion based on his “perception” of those historical facts. The appellate court, however, found that the error was harmless.

An evidentiary error is harmless if sufficient evidence uninfected by any error supports the verdict, and the error did not have substantial influence on the outcome of the case, the court observed. The district court held that “[r]eferences by the Florida Priory to a shared history with [Plaintiff Order] are perfectly appropriate, as the organizations shared a history prior to 1798. Any claim for false advertising also rings hollow given that the Florida Priory expressly associates itself with the Ecumenical Order, a non-Catholic organization.” This language indicated two discrete factual determinations, each of which independently supported the district court’s holding that the Florida Priory did not engage in false advertising via a misappropriation of Plaintiff Order’s history: first, the two organizations shared a history up until 1798; and second, the Florida Priory is an expressly non-Catholic organization.

The court concluded that despite the abuse of discretion in allowing Papanicolaou to testify, the district court was not “substantially swayed” by Papanicolaou’s inadmissible testimony because the holding’s alternative ground—that The Florida Priory is non-Catholic—was sufficient to uphold the district court.

The case is No. 11-15101.

Paul D. Clement (Bancroft, PLLC) for Sovereign Military Hospitaller Order of Saint John of Jerusalem of Rhodes and of Malta. Thomas W. Brooke (Holland & Knight, LLP) for Florida Priory of the Knights Hospitallers of the Sovereign Order of Saint John of Jerusalem, Knights of Malta, The Ecumenical Order.

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