## Facts

- Galerie Gmurzynska, a German gallery specializing in Russian avant-garde art, sued a competing New York gallery (Hutton Galleries) and several art experts.
- Galerie alleged Hutton Galleries and the experts coordinated a campaign to disparage Galerie by having the experts question the authenticity of works Galerie sold or offered.
- Galerie claimed the opinions stated or implied Galerie’s works were inauthentic, harming its reputation and diverting business to Hutton Galleries.
- Galerie asserted a federal false advertising claim under Lanham Act § 43(a)(1)(B), plus state-law claims for defamation and tortious interference, and sought a declaratory judgment that its works were genuine.

## Issues

1. Whether allegations that independent art experts questioned authenticity stated a claim under Lanham Act § 43(a)(1)(B) as “commercial advertising or promotion,” particularly absent allegations the experts competed with Galerie.
2. Whether the complaint stated a Lanham Act claim against Hutton Galleries when the alleged misrepresentations were made by experts and the complaint relied on conspiracy/vicarious-liability allegations.
3. Whether dismissal of the sole federal claim justified dismissal of the declaratory judgment claim and the court’s decision to decline supplemental jurisdiction over the state-law claims.

## Decision

- The Second Circuit affirmed dismissal under Rule 12(b)(6).
- The Lanham Act claim against the expert defendants was dismissed because the complaint did not plausibly allege their opinions were made in “commercial advertising or promotion,” and they were not alleged to be competitors of Galerie.
- The Lanham Act claim against Hutton Galleries was dismissed because the complaint did not allege Hutton itself made a false or misleading representation and alleged only conclusory conspiracy assertions to attribute the experts’ statements to Hutton.
- With no viable federal claim, the court upheld dismissal of the declaratory judgment claim for lack of a remaining justiciable controversy and affirmed the decision to decline supplemental jurisdiction over the state-law claims.

## Legal Principles

- A Lanham Act § 43(a)(1)(B) claim requires a plausible allegation of a false or misleading representation made in “commercial advertising or promotion.”
- Professional or expert opinions by non-competitors, even if allegedly biased or harmful to sales, do not automatically constitute “commercial advertising or promotion” within the Lanham Act.
- Conspiracy or vicarious-liability theories cannot substitute for pleading facts showing the defendant made, controlled, or is legally responsible for the challenged commercial representation; conclusory conspiracy allegations are insufficient.
- When the federal claim is dismissed at an early stage, a district court may dismiss related declaratory relief for lack of a live case or controversy and may decline supplemental jurisdiction over state-law claims.

## Conclusion

The Second Circuit held that alleged disparagement through independent expert authenticity opinions, without well-pleaded facts tying the statements to defendants’ commercial advertising or to a defendant’s own actionable misrepresentations, does not state a Lanham Act false advertising claim, and it affirmed dismissal of the remaining claims after the federal claim failed.


Gmurzynska v. Hutton, 355 F.3d 206 (2d Cir. 2004)