Antitrust Law Daily Wrap Up, ADVERTISING—D.N.J.: Dueling summary judgment motions denied in fishing tower dispute, (Apr 14, 2026)

By Patricia K. Ruiz, J.D.

The court found factual disputes under Lanham Act and Ohio law and dismissed a New Jersey consumer fraud claim for lack of standing.

The federal district court in Trenton, New Jersey denied cross-motions for summary judgment in a dispute between competing manufacturers of recreational fishing towers, concluding that genuine disputes of material fact precluded judgment as a matter of law on federal and state false advertising counterclaims under the Ohio Deceptive Trade Practices Act (ODTPA). The court held that questions remain over whether allegedly false statements about product origin constituted actionable commercial advertising or promotion and whether they were sufficiently disseminated to the relevant market. At the same time, the court dismissed a counterclaim under the New Jersey Consumer Fraud Act (NJCFA) after determining the defendant lacked Article III standing because it did not allege an ascertainable consumer loss (Tower Systems, Inc. v. Fish On Sports Corp., No. 3:23-cv-11931-MAS-JBD (D.N.J. Apr. 8, 2026)).

Background. Tower Systems Inc. and Fish On Sports Corporation are competitors in the recreational boating and fishing market. Tower initiated the action in August 2023 seeking declaratory relief after Fish On threatened litigation, asserting that certain statements by a Tower employee about Fish On’s products did not amount to trade disparagement or false advertising. Fish On later counterclaimed, alleging false advertising under Section 43(a) of the Lanham Act and deceptive trade practices under Ohio and New Jersey law. Both sides moved for summary judgment. Fish On sought judgment on all counterclaims as well as injunctive relief and damages, while Tower filed a cross-motion seeking dismissal of the counterclaims and declarations in its favor. The court resolved the motions without oral argument.

Lanham Act claim. With respect to the Lanham Act claim, the court first addressed whether the challenged statements could qualify as “commercial advertising or promotion,” a threshold requirement for liability. The alleged statements included a February 2022 representation by a Tower employee to a Fish On employee during a competitive pricing inquiry, and a March 2023 email in which a Tower salesperson told a prospective customer that Fish On’s products were manufactured in China and only finished in the United States—a statement the parties agreed was false.

The court found genuine disputes of material fact regarding the February 2022 statement, including whether the parties were competitors at the time and whether the statement constituted commercial speech. The court noted that isolated private statements to a competitor, without more, generally fall outside the scope of commercial advertising or promotion. The court also declined to credit statements attributed to unidentified prospective customers who allegedly repeated comments they had heard from Tower about Fish On’s products. The court characterized those statements as double hearsay and disregarded them for purposes of summary judgment.

As to the March 2023 email, the court concluded that the statement was commercial speech because it was made by sales personnel in the course of her duties and during peak sales season. However, the court determined that factual disputes remained over whether the statement was sufficiently disseminated to the relevant purchasing public. Although Tower conceded that similar statements were made at least one other time, the court emphasized that the sufficiency of dissemination is a fact-intensive inquiry and that isolated statements to individual customers may be inadequate to meet the Lanham Act standard absent evidence of an organized promotional campaign. Because disputes of material fact remained regarding whether the challenged statements constituted actionable advertising and whether they caused harm, the court denied summary judgment on the Lanham Act claim.

ODTPA, NJCFA claims. The court reached the same result on Fish On’s counterclaim under the ODTPA. The court explained that false advertising claims under the Ohio statute are analyzed under the same framework as Lanham Act claims, including the requirement that the conduct constitute commercial advertising or promotion. Having found that Fish On failed to establish entitlement to summary judgment on the federal claim, the court denied summary judgment on the Ohio claim for the same reasons.

The court diverged, however, in its treatment of the NJCFA counterclaim. Addressing standing sua sponte, the court held that Fish On lacked Article III standing to pursue the claim because it did not allege an ascertainable loss arising from a consumer transaction. The court emphasized that the statute is designed to protect consumers and requires a concrete, quantifiable loss of money or property. As a commercial competitor asserting injury from allegedly false advertising, Fish On had not pleaded or supported evidence of a consumer-like, out-of-pocket loss. Because the absence of an ascertainable loss meant Fish On failed to allege an injury in fact for standing purposes, the court dismissed the New Jersey consumer fraud claim for lack of jurisdiction.

The Case is No. 3:23-cv-11931-MAS-JBD.

Judge: Shipp, M.

Attorneys: Timothy P. Neumann (Broege Neumann Fischer & Shaver, LLC) for Tower Systems, Inc. Sergio I. Scuteri (Capehart & Scatchard, P.A.) for Fish On Sports Corp.

Companies: Tower Systems, Inc.; Fish On Sports Corp.

Cases: Advertising StateUnfairTradePractices NewJerseyNews