Intellectual Property Law

Short Takes: ?In Hand? Service and Deceptive Advertising

By Lee Gesmer

What does it mean when a contract requires that notice be given “in hand”? Believe it or not, despite over 225 years of Massachusetts jurisprudence, no Massachusetts court had ever considered this question. In McMann v. McGowan, 17 Mass. App. Ct. 513 (2008), decided on April 7, 2008, the Appeals Court held that “in hand” means delivery into the hand of an authorized receipient. The Court rejected the argument that “in hand” includes delivery by hand, the position argued by the losing party. Of such things the law is built.

Everyone knows that false or deceptive advertising is illegal, but a recent decision by Superior Court Judge Thayer Fremont-Smith provides a reminder of how difficult it is for a competitor allegedly harmed by false advertising to prove actual harm and damages, except in the rare case where there are only two firms in the market. Where there are more than two competitors, as Judge Fremont-Smith points out, “it cannot confidently be inferred that any customers procured by defendants’s false advertising were at plaintiffs’ expense.”  While not dismissing the case outright, recovering any damages looks like a steep uphill fight for the plaintiff in this case.  IDT Telecom v. Voice Distributors, Middlesex Superior Court, April 11, 2008.

Full post as published by Mass Law Blog on May 08, 2008 (boomark / email).