had stated a claim for "reverse passing off", removing a name or trademark from the product of another and substituting a different name or mark. The Ninth Circuit concluded, as a matter of law, that Montoro's conduct was actionable under section 43(a) as a false designation of origin in connection with Smith's services as an actor.

Courts have divided recently over the question of whether parties in section 43(a) cases must be in competition with each other. In Halicki v. United Artists Communications, Inc., 812 P.2d 1213 (9th Cir. 1987), the Ninth Circuit dismissed an action by a motion picture producer against distributors and exhibitors of his film who had erroneously advertised the film as R-rated rather than PG-rated. The court held that "the statute is directed against unfair competition. To be actionable, conduct must not only be infair but must in some discernible way be competitive." 812 F.2d at 1214. Accordingly, the court held that the plaintiff had no standing to sue. The recent case of Allen v. Men's World Outlet, 679 F. Supp. 360 (8.D.N.Y. 1988), reached the opposite conclusion. There, actor and director Woody Allen sought an injunction under section 43(a) against defendant's use of an Allen look-alike in advertising matter. In granting the injunction, the court stated that "[t]here is no requirement under the [Lanham] Act that plaintiff and defendant actually be in competition." 679 F. Supp. at 368. It is enough, the court stated, that the defendant's audience be "the same

audience to which plaintiff's own commercial efforts are

directed.

Id.

VII.

Amendment of section 43(a) by the Trademark Revision Act of 1988.

The Trademark Revision Act of 1988 (TRA), Pub. L. No. 100-667, 102 Stat. 3925 (1988), becomes effective on November 16, 1989. The Act amends section 43(a) as follows:

Any person who, on or in connection with any
goods or services, or any container for goods,
uses in commerce any word, term, name, symbol,
or device, or any combination thereof, or any
false designation of origin, false or
misleading description of fact, or false or
misleading representation of fact, which

(1) is likely to cause confusion, or to
cause mistake, or to deceive as to the
affiliation, connection, or association
of such person with another person, or as
to the origin, sponsorship, or approval
of his or her goods, services, or
commercial activities by another person,

or

(2) in commercial advertising or
promotion, misrepresents the nature,
characteristics, qualities, or geographic
origin of his or her or another's goods,
services, or commercial activities,

shall be liable in a civil action by any person
who believes that he or she is or is likely to be
damaged by such act.

TRA, section 112.

The main purpose in amending section 43(a) was to conform its language to expanding judicial interpretations that have made it, "in essence, a Federal law of unfair competition." See H.R. Rep. No. 100-1028, 100th Cong., 2d Sess. 14 (1988). Amendment was

also sought in four specific areas where courts had drawn

different conclusions:

free speech);

(1) to provide that relief is available

for false representations about anyone's goods or services, not merely those of a defendant (subject to First Amendment rights of (2) to clarify that the remedies for infringement of a Federally-registered mark are also available in section 43(a) actions; (3) to provide a cause of action for disparagement or tarnishment of a trademark; and (4) to prevent the dilution of famous trademarks. See USTA Review Commission Report, supra, at

96-113.

TRA,

The disparagement or tarnishment and dilution proposals were not enacted. However, the TRA has codified case law holding that injunctions, damages and destruction of labels and similar materials are available as remedies in section 43(a) cases. sections 128 (c), 129 and 130. Moreover, subject to First Amendment considerations, amended section 43(a) will now apply statutorily to misrepresentations about the goods, services or commercial activities of anyone, not only to false

representations made by a defendant about its own goods, services or commercial activities.

VIII. Conclusions.

After consideration of the comments and our own review of the legislative history, cases and other authorities, we conclude that in certain circumstances section 43(a) may provide a right of action to prevent technological material alteration of existing motion pictures without the consent of persons who participated in the creation of those motion pictures, including principal directors and screenwriters. We do not believe, however, that section 43(a) should be amended to create a specific right for principal directors and principal screenwriters to prevent "material alterations" of motion pictures over which they exercised some artistic control.

If more extended moral

rights protection for creative artists is desired, it should not be sought under the Lanham Act.

A. Applicability of Section 43(a) to the New Technologies.

Section 43(a) of the Lanham Act generally prohibits false designations of origin and false descriptions or representations in connection with any goods or services used in commerce; it provides a right of action to persons who believe they are likely to be damaged by such false designations, descriptions, or

representations. 15 U.S.C. 1125(a).

Since the Second Circuit's holding in Geisel, supra, section

43(a) has been applied as a means to protect creative artists