Can a company publicise by word of mouth and marketing that they have patents on several products from their competitors, using that to their competitive advantage, to damage the competitors image and scare customers from buying elsewhere, when they have not got those patents or just have patent requests that won't be granted?

Is this unfair competition with legal action possible?

1 Answer 1


In US Patent law have provisions for false marketing:-

35 U.S. Code § 292 - False marking

(a) Whoever, without the consent of the patentee, marks upon, or affixes to, or uses in advertising in connection with anything made, used, offered for sale, or sold by such person within the United States, or imported by the person into the United States, the name or any imitation of the name of the patentee, the patent number, or the words “patent,” “patentee,” or the like, with the intent of counterfeiting or imitating the mark of the patentee, or of deceiving the public and inducing them to believe that the thing was made, offered for sale, sold, or imported into the United States by or with the consent of the patentee; or Whoever marks upon, or affixes to, or uses in advertising in connection with any unpatented article, the word “patent” or any word or number importing that the same is patented, for the purpose of deceiving the public; or Whoever marks upon, or affixes to, or uses in advertising in connection with any article, the words “patent applied for,” “patent pending,” or any word importing that an application for patent has been made, when no application for patent has been made, or if made, is not pending, for the purpose of deceiving the public— Shall be fined not more than $500 for every such offense. Only the United States may sue for the penalty authorized by this subsection.

(b) A person who has suffered a competitive injury as a result of a violation of this section may file a civil action in a district court of the United States for recovery of damages adequate to compensate for the injury.

(c) The marking of a product, in a manner described in subsection (a), with matter relating to a patent that covered that product but has expired is not a violation of this section.

also see See Clontech Labs. Inc. v. Invitrogen Corp., 406 F.3d 1347, 1352 (Fed.Cir.2005).

But in Europe case is slightly different and not question is raised by IP law on intention to deceive public. I found no promising cases to support false marketing in EU. however i recently came to know that in UK law is in place named "Consumer Protection from Unfair Trading Regulations" Section 5 and 6 , wherein consumer can raise question on deceive under false marketing. It remains doubtful to me how things going to turn

  • So this is not a patent law case but civil law, in case I feel they have caused my company harm with false marketing and slander? Considering all they have is one patent and a couple patent requests, but say all their products are patented and everyone else is counterfeiting. May 7, 2015 at 19:40
  • Sort of but patent law will be cited for directions. In europe it seems to be not a patent law related offence
    – Pushpak
    May 8, 2015 at 3:54

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