The federal Lanham Act is normally known as a statute to protect trademarks. However, there is a specific section that creates provisions for businesses to sue one another for false advertising and promotion. Many recent court cases have used this statute in the prosecution of businesses engaged in false advertising of their products or services.
For help in protecting your business from potentially violating this statute or if you believe a competitor is engaging in false promotion, you will need the help of a California business law attorney to discuss the potential legal action you will need to take.
Determining False Advertising and Promotion
The following situations are generally considered to be examples of false advertising and promotion:
- When the defendant makes a false or misleading statement in advertising;
- When the statement made actually deceived or had the capacity to deceive a large portion of the population;
- When the deception was material (was likely to influence the purchase decision);
- When the defendant caused its goods to enter interstate commerce; and
- When the plaintiff was or is likely to be damaged as a result of the false advertising.
Categories of False Advertising and Promotion
There are generally 3 categories of false advertising and promotion: implied falsity, literal falsity, and “mere puffery.” The third case of “puffery” is not actionable because it is defined as “exaggerated advertising, blustering and boasting.”
Implied false advertising claims are ones that are literally true, but imply another message that is false. An example would be a shaving company claiming their razor’s moisture strip was “six times smoother” than the competitor’s strip. The court rejected the defendant’s claim that the claim was for the strip only, which may have been true. Instead, the court found the claim implied the consumer would receive a six times smoother shave than with the competitor’s razor, a claim which was false.
Literal false advertising largely applies to promotional materials that involve statistical and testing proof of claims. The “tests prove” literal false advertising is where advertising relies on a study or test that establishes the supposed validity of the claim. There are also “bald claims” that do not rely on tests or peer-reviewed studies and therefore must be proven to be false, usually through the help of California business law attorneys.
Hiring California Business Law Attorneys
If you feel your business is a victim of false advertising by your competitors your first step should be consulting with California business law attorneys with experience in false advertising and promotions.
The California business law attorneys at the ADLI Law Group P.C. have formed lasting relationships with businesses across Los Angeles County and around the globe. Contact us today for experienced help with protecting your trademarks - (800) 817-2949.