CW, Inc. publishes Consumer Watchdog

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CW, Inc. publishes Consumer Watchdog, a magazine whose articles consist of the writers’ personal experiences with and reactions to a variety of products. In the June 1997 issue of Consumer Watchdog, a review included this statement: “Fungus Co.’s “Fungo” brand athlete’s foot powder doesn’t cut the mustard in comparison to most athlete’s foot powders on the market– and I’ve tried them all, sports fans. Fungo fails to attack athlete’s foot with enough force because the product doesn’t contain AF88, the active ingredient in any decent athlete’s foot powder.” In fact, Fungo contains as much AF88 as any other athlete’s foot powder on the market. Fungus Co. has filed suit against CW on the theory that the above statements violated section 43(a) of the Lanham Act. On these facts, should Fungus win the section 43(a) case? Why or why not? Discuss fully.

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