## Facts

- North American Medical Corporation (NAM) designed and sold physiotherapeutic spinal traction devices under registered marks including “Accu-Spina” and “IDD Therapy.”
- Adagen Medical International, Inc. distributed NAM’s devices as an authorized distributor.
- Axiom Worldwide, Inc., a competitor, marketed the DRX 9000 spinal traction device.
- Axiom embedded NAM’s registered marks in its website meta tags so the marks would appear in search-engine results associated with Axiom’s site, even though the marks did not appear on the visible webpages.
- Axiom’s marketing materials also suggested an affiliation with NASA and represented that the DRX 9000 was “FDA approved.”
- NAM and Adagen sued under the Lanham Act for trademark infringement (meta-tag use) and false advertising (NASA affiliation and FDA approval claims).
- The district court issued a preliminary injunction barring (1) use of NAM’s marks in meta tags and (2) certain advertising statements, relying in part on a presumption of irreparable harm.
- Axiom and individual officers appealed the preliminary injunction.

## Issues

1. Whether using a competitor’s registered marks solely in website meta tags constitutes “use in commerce” and supports a likelihood of confusion under the Lanham Act.
2. Whether statements implying NASA affiliation and claiming FDA “approval” were literally false and materially misleading for Lanham Act false advertising liability.
3. Whether, after eBay, a court may presume irreparable harm upon showing likely success in Lanham Act claims, particularly for non-comparative false advertising and trademark infringement.

## Decision

- The Eleventh Circuit affirmed the district court’s determination that NAM was likely to succeed on the merits of its trademark infringement claim based on Axiom’s meta-tag use.
- The court affirmed the district court’s determination that NAM was likely to succeed on the merits of its false advertising claims concerning NASA affiliation and FDA “approval,” finding the statements literally false and material.
- The court vacated the preliminary injunction in part and remanded for reconsideration of irreparable harm under traditional equitable principles as informed by eBay.
- For non-comparative false advertising, the court held that irreparable harm may not be presumed and must be supported by evidence.
- For trademark infringement, the court required the district court to revisit the irreparable-harm analysis in light of eBay, without definitively resolving whether any presumption remains available.

## Legal Principles

- Unauthorized placement of another’s registered trademark in website meta tags can be a “use in commerce” when it is employed to attract consumers through search results.
- Meta-tag trademark use may support a likelihood of confusion, including confusion as to affiliation or sponsorship arising from consumers being drawn to a competitor’s website through the trademark.
- Lanham Act false advertising liability may be established by “literal falsity” where challenged promotional claims are factually untrue, and materiality where the claims are likely to influence purchasing decisions.
- After eBay, courts must apply traditional equitable factors in Lanham Act injunction requests and should not automatically presume irreparable harm.
- In non-comparative false advertising (promoting the defendant’s product without expressly contrasting it with the plaintiff’s), irreparable harm is not presumed; the plaintiff must make an affirmative evidentiary showing.

## Conclusion

The Eleventh Circuit treated meta-tag use of a competitor’s marks as actionable trademark use likely to confuse consumers and sustained the plaintiff’s likelihood of success on both trademark and false advertising theories, but required a renewed, evidence-based irreparable-harm analysis for injunctive relief consistent with eBay, expressly rejecting any automatic presumption of irreparable harm for non-comparative false advertising.


N. Am. Med. Corp. v. Axiom Worldwide, Inc., 522 F.3d 1211 (11th Cir. 2008)