bait and switch advertising

Is Bait and Switch Advertising Actionable Under the Lanham Act?

A recent Eastern District of New York decision, Sussman-Automatic Corp. v. Spa World Corp., 15 F.Supp.3d 258,  (E.D.N.Y. 2014), holds that use of a trademark in “bait and switch” advertising does not constitute trademark infringement (although it might constitute false advertising).  In dismissing the plaintiff’s trademark infringement complaint, the decision appears to have unduly narrowed the scope of Lanham Act actionable “confusion.”  

We analyze this case and discuss why its reasoning is flawed and inconsistent with the Second Circuit interpretation of the Lanham Act.