What is commercial disparagement?

“Whereas defamation, which includes libel and slander, concerns damage to the reputation of a person or business, disparagement concerns damage to the reputation of products, goods, or services.” (Hartford Casualty Ins. Co. v. Swift Distribution, Inc. (2014) 59 Cal.4th 277, 288–289.)

“Confusion surrounds the tort of ‘commercial disparagement’ because not only is its content blurred and uncertain, so also is its very name.” (Hartford Casualty Insurance Co. v. Swift Distribution, Inc. (“Swift”) (2014) 59 Cal.4th 277, 289.) “The tort has received various labels, such as ‘commercial disparagement,’ ‘injurious falsehood,’ ‘product disparagement,’ ‘trade libel,’ ‘disparagement of property,’ and ‘slander of goods.’” (Id.) “In fact, all these labels denominate the same basic legal claim.” (Id.)

“Disparagement is often included now as ‘a specific example of the more general principle of injurious falsehood.’ Under the definition of an injurious falsehood, ‘[o]ne who publishes a false statement harmful to the interests of another is subject to liability for pecuniary loss resulting to the other if

  1. he intends for publication of the statement to result in harm to interests of the other having a pecuniary value, or either recognizes or should recognize that it is likely to do so, and
  2. he knows that the statement is false or acts in reckless disregard of its truth or falsity.’”

(Hartford Casualty Ins. Co. v. Swift Distribution, Inc. (2014) 59 Cal.4th 277, 289–290.)

“In evaluating whether a claim of disparagement has been alleged, courts have required that the defendant's false or misleading statement have a degree of specificity that distinguishes direct criticism of a competitor's product or business from other statements extolling the virtues or superiority of the defendant's product or business. As explained below, disparagement involves two distinct but related specificity requirements. A false or misleading statement

  1. must specifically refer to the plaintiff's product or business, and
  2. must clearly derogate that product or business. Each requirement must be satisfied by express mention or by clear implication.”

(Hartford Cas. Ins. Co. v. Swift Distribution, Inc. (2014) 59 Cal.4th 277, 284.)

Useful Rulings on Commercial Disparagement

Recent Rulings on Commercial Disparagement

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