False advertising is unlawful under federal and state laws. If you have been the victim of false advertising, you need legal advice and counsel from false advertising attorneys. False advertising laws are complex and, so, you need the best litigation team. Generally, consumers have many rights and the ability to sue under false advertising laws. But, business competitors have the additional right and ability to sue for false advertising under the Section 43(a) of the Lanham Act (which is the main US trademark law). Importantly, the US Supreme Court has defined “competitor” very broadly, so the victim of false advertising need not be a direct competitor or a competitor as one might commonly define that term. What is required is that the victim have suffered “an injury to a commercial interest in sales or business reputation caused by the defendant’s misrepresentations.” Here are some basics of suing for false advertising under the Lanham Act.

What are false advertising examples?

Generally, under the Lanham Act, two types of false advertising are distinguished:

• Literally false statements
• Statements that are true, but are likely to be misleading, confusing or deceptive

The first type of false advertising is the easiest to prove. But, if a statement is shown to be literally true, then the burden of proof shifts to the victim to prove that the statement is misleading, confusing or deceptive.

Note that statements of opinion or general claims of “puffery” are not actionable as false advertising. As an example, in the famous case involving Papa John’s Pizza, the phrase “Better Ingredients, Better Pizza” was deemed non-actionable puffery.

What does a victim of Lanham Act false advertising have to prove?

Generally, to succeed on a Lanham Act false advertising claim, the victim must prove five legal elements. These are:

• The party being sued — the defendant — made one or more false or misleading statements of fact
• Said statement or statement were used in a commercial advertisement or promotion and
• Said statement or statement were used in interstate commerce
• That the falsity or deception was material
• That caused competitive or commercial injury to the plaintiff

As noted above, a literal false statement is the easiest type of case to prove. Thus, for example, when a false statement is proven, courts will generally assume that that the fourth element — materiality — has been met.

What relief can be obtained in false advertising litigation?

A victim of Lanham Act false advertising can obtain various relief from a court if the litigation is successful. First, and foremost, the victim can obtain injunctive relief which means that the court can order the defendant to stop using the statement, advertising or promotion. Second, if actual damages are proven — such as the diversion of customers and lost profits — then a money judgment can be obtained for the victim. Under some circumstances, the defendant can be required to disgorge their profits. In certain other cases, attorneys’ fees can be awarded.

Contact Revision Legal

If you need an experienced false advertising lawyer, call Revision Legal. We are false advertising attorneys with proven experience in vindicating our clients’ rights, protecting IP rights and successfully navigating complex litigation. You can contact us through the form on this page or call (855) 473-8474.

Comparative Advertising and the Lanham Act

One of the most commercially significant applications of Lanham Act false advertising law is comparative advertising litigation. Comparative advertising — advertisements that specifically name and compare a competitor’s product — is lawful when the comparisons are truthful and substantiated. However, comparative advertising that makes false or misleading claims about a competitor’s product or services gives rise to a Lanham Act false advertising claim. Courts have made clear that advertisers using comparative advertising bear a legal obligation to ensure their comparative claims are accurate, supported by competent and reliable scientific evidence (where relevant), and not presented in a manner likely to deceive or mislead consumers.

In the landmark case POM Wonderful LLC v. Coca-Cola Co., 573 U.S. 102 (2014), the Supreme Court confirmed that Lanham Act false advertising claims may be brought even when a product’s labeling is regulated by another federal statute (there, the FDA’s food labeling regulations). The decision broadened the scope of actionable false advertising significantly, establishing that Lanham Act claims remain viable as a check on commercial deception even in heavily regulated industries.

Preliminary Injunctions in False Advertising Cases

In false advertising cases, where every day that a false advertisement runs causes ongoing competitive harm, obtaining a preliminary injunction to halt the advertising immediately is often the most important early legal objective. To obtain a preliminary injunction in a Lanham Act false advertising case, the plaintiff must show: (1) a likelihood of success on the merits of the false advertising claim; (2) a likelihood of irreparable harm in the absence of an injunction; (3) that the balance of harms tips in the plaintiff’s favor; and (4) that the injunction would serve the public interest.

Courts in false advertising cases have found that ongoing exposure of consumers to false advertising constitutes irreparable harm sufficient to support injunctive relief, even where some of the harm is theoretically compensable in money damages. Speed matters: a plaintiff who delays in seeking an injunction — even for a few months — may find that courts infer from the delay that the harm is not truly irreparable. Retaining experienced false advertising counsel and moving quickly for injunctive relief is essential to protecting your competitive position.

Damages Available Under the Lanham Act for False Advertising

Section 1117 of the Lanham Act provides that a prevailing plaintiff in a false advertising case may recover: the defendant’s profits attributable to the false advertising; the plaintiff’s actual damages; and the costs of the action. In exceptional cases, courts may award up to three times actual damages. Attorneys’ fees are also available in exceptional cases. Courts may additionally order corrective advertising — requiring the defendant to spend money running advertisements correcting the false impressions created by their prior false advertising — as a form of equitable relief. Calculating lost profits in a false advertising case requires economic expert testimony and is one of the most complex aspects of commercial litigation, underscoring the need for experienced counsel from the outset.

At Revision Legal, our false advertising attorneys represent both plaintiffs pursuing Lanham Act claims against deceptive competitors and defendants responding to false advertising allegations. Contact us today to evaluate your situation and discuss the most effective legal strategy.