Verisign, Inc. is a long-established tech company that sells Internet domain names. Verisign also runs .com and.net top-level domains. In 2014, XYZ.COM, LLC entered the domain business and launched a new top-level domain ending in “.xyz.” Verisign subsequently sued XYZ and its founder, Daniel Negari. At the heart of this case is not XYZ’s upstart desire to compete with Verisign, but in the alleged false advertisement that XYZ engaged into market itself. Some of the allegations of improper marketing included blog posts where Negari touted .xyz’s high registration numbers and popularity. Another supposedly misleading marketing statement was when XYZ paraphrased an interview between NPR and Negari, stating that an NPR reporter described “.xyz— the Next .com.” In addition to the accusations of exaggerated claims, Verisign also contended that XYZ had falsely disparaged the .com domain, against Verisign’s interests. For example, Negari said of .com domains in the NPR interview that “[a]ll of the good real estate is taken.” The district court granted summary judgment to XYZ, proclaiming that Verisign had failed to establish a violation of the Lanham Act on a number of grounds. The district court reasoned that statements like “all of the good real estate is taken” and “it’s impossible to find the domain name that you want,” were not false or misleading and amounted to puffery. Additionally, the district court stated that even if the statements were false or misleading, it did not violate the Lanham Act unless it deceived consumers. 

Do you think the quoted statements should be considered to be puffery? Why do you think false statements are not actionable unless it deceives consumers? How would a plaintiff alleging false advertising prove to the court that consumers have been deceived?