1. What Is False Advertising?
False advertising generally involves a false or misleading commercial representation concerning goods, services, or commercial activity.
Several legal systems regulate advertising in the United States.
For disputes between businesses and competitors, the Lanham Act is particularly important.
The Federal Trade Commission Act and related FTC rules and guidance focus more broadly on consumer deception and unfair advertising practices.
States also maintain separate false advertising, unfair competition, and consumer-protection laws.
Additional requirements may apply in regulated industries involving food, pharmaceuticals, medical devices, financial products, telecommunications, alcohol, tobacco, environmental marketing, and other specialized products or services.
False advertising therefore is not one universal cause of action with identical requirements in every context.
A useful starting point is to identify who made the statement, what the advertisement communicates, who was allegedly harmed, and which legal framework applies.
2. What Is a Lanham Act False Advertising Claim?
Section 43(a)(1)(B) of the Lanham Act creates a federal cause of action for qualifying false or misleading representations made in commercial advertising or promotion.
The statute addresses misrepresentations concerning the nature, characteristics, qualities, or geographic origin of goods, services, or commercial activities.
Examples can include an advertiser claiming that its product contains an ingredient that it does not contain, stating that independent testing proved a superiority claim when the testing does not support the statement, claiming that a product was manufactured in a particular country when it was not, or falsely representing that a service has a certification it does not possess.
A competitor may also challenge advertising that falsely describes the competitor’s own product.
False advertising and trademark infringement are related areas of the Lanham Act, but they address different conduct.
Trademark infringement generally focuses on confusion concerning source, sponsorship, affiliation, or approval.
False advertising generally focuses on false or misleading factual representations in commercial advertising or promotion.
A dispute can involve both theories when the facts support them.
Learn About Trademark Infringement & Enforcement
3. Who Can Sue a Competitor for False Advertising?
A Lanham Act false advertising plaintiff must show more than exposure to a misleading advertisement.
In Lexmark International, Inc. v. Static Control Components, Inc., the Supreme Court held that a plaintiff must fall within the interests protected by the Lanham Act and allege injury to a commercial interest in reputation or sales that was proximately caused by the defendant’s violation.
The plaintiff does not necessarily need to satisfy a rigid direct-competitor requirement.
The important issue is whether the challenged advertising caused the type of commercial injury protected by the statute.
Potential injuries can include lost sales, diverted business, reduced demand, harm to commercial reputation, or other competitive injury attributable to the allegedly false advertising.
This is different from ordinary consumer injury.
A consumer who purchased a product because of allegedly misleading advertising may have rights under other statutes, including state consumer-protection laws, but ordinary consumer injury alone does not automatically create a Lanham Act false advertising claim.
4. What Must Be Proven in a False Advertising Case?
The precise formulation can vary among federal courts, but a Lanham Act false advertising claim generally requires proof that a challenged commercial message is false or misleading, material, disseminated in commercial advertising or promotion, connected to interstate commerce, and likely to cause or actually causes legally cognizable commercial injury.
Materiality is important.
A false or misleading statement ordinarily must concern something capable of influencing purchasing decisions.
A trivial error with no relationship to consumer choice may present a very different case from a false statement concerning product performance, safety, price, testing, ingredients, origin, product capabilities, or superiority over a competitor.
The claimant must also connect the advertising to commercial injury.
Under Lexmark, proximate causation matters.
The plaintiff should be able to explain how the challenged advertising affected its reputation, sales, demand, competitive position, or another protected commercial interest.
5. What Is the Difference Between Literally False and Misleading Advertising?
Courts commonly distinguish between advertising that is literally false and advertising that may be technically capable of a truthful reading but nevertheless conveys a misleading message.
Literally False Advertising
A statement can be literally false when the factual representation it expressly communicates is untrue.
For example, an advertisement stating that a product lasts 30 hours can present a literal-falsity issue if reliable evidence establishes that the represented product does not produce that result under the conditions communicated in the advertisement.
Impliedly False or Misleading Advertising
An advertisement may use individually accurate words but create a misleading overall message.
Images, layout, headlines, comparisons, qualifications, packaging, and surrounding context can affect the message consumers receive.
The distinction can affect the type of evidence required.
Where an advertisement communicates an unambiguously false factual claim, consumer-perception evidence may not always be necessary to establish what the advertisement means.
Where the challenged claim is ambiguous and allegedly misleading rather than literally false, consumer surveys or other evidence showing how consumers actually interpret the advertisement can become particularly important.
6. What Is False Advertising by Necessary Implication?
An advertisement does not always need to state a false proposition word for word.
In the Second Circuit, an advertisement may be literally false by necessary implication when the words and images, considered together and in context, necessarily and unambiguously communicate a false factual message.
A commercial might show a competitor’s product failing a particular test while the advertiser’s product succeeds and then present a headline suggesting consumers can “see the difference.”
Even without expressly stating that the advertiser’s product outperforms the competitor under ordinary conditions, the overall presentation may communicate that factual proposition.
False advertising analysis therefore evaluates the advertisement as a whole.
Headlines matter.
Images matter.
Footnotes and disclaimers matter.
Packaging and visual presentation matter.
A technically accurate qualification buried elsewhere in an advertisement does not necessarily cure a dominant false message communicated by the advertisement as a whole.
7. What Is Advertising Puffery?
Not every boastful advertising statement is actionable.
Some promotional statements are considered puffery.
Puffery generally consists of vague, subjective, exaggerated, or obviously promotional statements that reasonable consumers would not understand as concrete factual claims capable of objective verification.
Statements such as “the ultimate experience,” “unbeatable style,” or “our most exciting product ever” may be more likely to qualify as puffery depending on the context.
The analysis changes when the statement becomes specific and measurable.
Compare:
“Our coffee tastes better.”
with:
“In an independent nationwide blind test, 78% of consumers preferred our coffee over Brand X.”
The second statement communicates specific factual claims concerning testing, methodology, and results.
Those representations can be objectively evaluated.
Whether a particular statement is puffery therefore depends on the language, context, specificity, and whether reasonable consumers would understand it as a verifiable factual claim.
8. Can Comparative Advertising Be Legal?
Yes.
Comparative advertising is not inherently unlawful.
Businesses may lawfully compare their products or services with competitors when the comparison is truthful and nondeceptive.
A company may potentially identify a competitor by name, compare prices, explain feature differences, compare performance, discuss ingredients, or contrast objective specifications.
Problems arise when the comparison is false or materially misleading.
A business making comparative claims should consider whether the products are genuinely comparable, whether current versions are being compared, whether test conditions are equivalent, whether pricing information is current, whether material limitations have been omitted, and whether the underlying test measures what the advertisement claims it measures.
A single favorable result also should not necessarily be presented as though it establishes universal superiority.
Truthful comparison can promote competition.
False comparison can create substantial legal exposure.
9. Do Advertising Claims Need Substantiation?
Under FTC standards, advertisers generally should possess an appropriate factual basis for objective advertising claims before those claims are disseminated.
What constitutes adequate substantiation depends on the type of claim, the product or service, the consequences of error, the amount of substantiation experts in the field would consider reasonable, and what level of support the advertisement itself communicates.
Health and safety claims can require particularly strong support.
The distinction between FTC substantiation standards and a private Lanham Act claim is important.
A private competitor generally cannot establish Lanham Act liability simply by asserting that an advertiser has not produced enough evidence to satisfy the competitor.
The claimant ordinarily must establish that the challenged commercial representation is false or misleading under the applicable Lanham Act standard.
FTC prior-substantiation requirements and private competitor litigation should therefore be analyzed separately.
10. What Are Establishment Claims Such as “Tests Prove”?
Some advertisements do more than make a product-performance statement.
They also claim that testing or scientific evidence proves the advertised result.
Examples include statements such as “clinical studies prove,” “laboratory tested to outperform,” “independent testing confirms,” “doctors recommend,” or “scientific research demonstrates.”
These are often called establishment claims.
An establishment claim can be evaluated by examining whether the claimed evidence exists and whether it actually supports the advertised proposition.
If a company says that clinical studies prove Product A works twice as fast as Product B, the analysis can include how the studies were designed, which products were tested, whether the methodology was appropriate, what the data showed, and whether the advertisement accurately describes the results.
A claim about testing therefore creates two related questions.
Does the product perform as advertised?
And does the represented testing actually establish what the advertisement says it establishes?
11. Can an Omission Make Advertising Misleading?
Potentially.
An advertisement can become misleading when important information is omitted in a way that materially changes the message conveyed.
Under FTC deception principles, both affirmative statements and material omissions can be relevant when determining whether advertising is likely to mislead reasonable consumers.
A prominent benefit claim, for example, may become misleading if a significant qualification necessary to understand the advertised benefit is omitted.
A private Lanham Act claim should be analyzed somewhat differently.
Section 43(a)(1)(B) focuses on false or misleading descriptions or representations of fact.
The important question is therefore whether the omission causes the advertisement, considered as a whole, to communicate a materially false or misleading factual message.
The Lanham Act should not be understood as requiring advertisers to disclose every fact that might conceivably be useful to consumers.
12. Can Product Packaging and Labels Constitute False Advertising?
Yes, depending on the circumstances.
False advertising is not limited to television commercials or online banner advertisements.
Commercial representations can appear on product packaging, labels, websites, brochures, point-of-sale materials, emails, social media posts, sales presentations, online marketplace listings, videos, and other promotional materials.
Packaging can communicate factual claims about ingredients, origin, performance, quantity, quality, testing, or other product characteristics.
The Supreme Court’s decision in POM Wonderful LLC v. Coca-Cola Co. confirmed that qualifying Lanham Act competitor claims concerning labeling can coexist with federal food-labeling regulation rather than being categorically displaced by that regulatory regime.
That does not mean every labeling dispute creates a Lanham Act claim.
Specialized federal regulatory statutes can affect particular products and industries.
But a business should not assume that a representation becomes immune from competitor false advertising law merely because it appears on packaging rather than in a traditional advertisement.
13. Can Testimonials, Influencers, and Reviews Create False Advertising Problems?
Yes.
Testimonials and endorsements are subject to fundamental truthfulness principles.
An endorsement should reflect the endorser’s honest opinion or experience and generally should not communicate claims that the advertiser itself could not lawfully make.
Material relationships between advertisers and endorsers may also require clear disclosure where consumers would not reasonably expect the connection.
Potential issues can arise from paid influencers, free products, affiliate relationships, employee testimonials, celebrity endorsements, expert endorsements, customer success stories, reviews incorporated into advertising, and testimonials describing atypical results.
The fact that a claim comes from an influencer rather than directly from the company does not automatically protect the advertiser.
A business should not use an influencer to communicate a deceptive product-performance or health claim that the business itself could not lawfully place in a conventional advertisement.
14. What Rules Apply to Fake Reviews and Testimonials?
The FTC’s Rule on the Use of Consumer Reviews and Testimonials took effect on October 21, 2024.
The rule addresses several forms of deceptive review and testimonial activity.
It covers practices involving fake or false consumer reviews, certain fake celebrity testimonials, incentives conditioned on positive or negative review sentiment, certain undisclosed insider reviews, misrepresentation of company-controlled review websites as independent, certain review-suppression practices, and the purchase or sale of certain fake indicators of social media influence for commercial purposes.
The rule is particularly relevant in modern digital marketing because fabricated reviews and social-media activity can be generated and distributed at scale.
Businesses using reviews, testimonials, influencers, or social proof as part of their marketing strategy should therefore consider both general advertising principles and the specific requirements applicable to reviews and testimonials.
15. Does False Advertising Apply to Websites and Social Media?
Yes.
Advertising law applies to digital marketing as well as traditional advertising.
Potential advertising channels include websites, search advertisements, social media posts, influencer content, Amazon or other marketplace listings, sponsored videos, email marketing, landing pages, podcasts, native advertising, mobile applications, online reviews, affiliate marketing, and digital comparison tools.
A factual claim does not become legally safer simply because it appears in a social media video rather than a print advertisement.
The format may, however, affect how disclosures should be presented and how consumers are likely to understand the overall message.
Businesses should evaluate online advertising based on how consumers actually encounter it, including the placement of disclosures, size of qualifications, visual presentation, audio, captions, hyperlinks, and other surrounding context.
16. What Is the Difference Between a Lanham Act Claim and FTC Enforcement?
The Lanham Act and FTC advertising enforcement serve different functions.
Lanham Act False Advertising
A qualifying business that suffers commercial injury from false advertising may bring a private federal action under Section 43(a)(1)(B).
The dispute focuses on false or misleading commercial representations and their effect on the plaintiff’s protected commercial interests.
FTC Advertising Enforcement
The Federal Trade Commission enforces federal laws and rules addressing deceptive or unfair advertising practices affecting consumers.
The FTC can investigate conduct, issue certain notices or warnings, initiate administrative proceedings, bring qualifying federal enforcement actions, enforce specific advertising rules, and seek remedies authorized by the applicable statute or rule.
Businesses and consumers can submit reports to the FTC, but filing a report does not guarantee an investigation or enforcement action.
A business seeking its own injunction or damages generally must identify an independent private cause of action, such as the Lanham Act or applicable state law.
17. How Does New York False Advertising Law Work?
New York maintains separate statutory false advertising protections.
New York General Business Law § 350 declares false advertising unlawful in the conduct of business, trade, commerce, or the furnishing of services in New York.
Section 350-a defines false advertising to include advertising or labeling that is misleading in a material respect and directs attention to both affirmative representations and failures to reveal material facts in light of those representations.
New York also provides a statutory private remedy.
Under GBL § 350-e, a person injured by a qualifying violation may seek injunctive relief and recover actual damages or $500, whichever is greater.
Where the defendant willfully or knowingly violated the statute, the court may increase the award to as much as three times actual damages, subject to the statute’s $10,000 cap on that enhanced award.
Reasonable attorney’s fees may also be available to a prevailing plaintiff under the statute.
These New York standards are separate from the Lanham Act.
A particular dispute may potentially involve both federal and state claims when the requirements of each are satisfied.
18. What Evidence Should a Business Preserve?
False advertising disputes often depend heavily on what the advertising actually communicated and how the challenged representation affected the market.
Advertising changes quickly.
Webpages are edited.
Social media posts are deleted.
Product packaging changes.
Search advertisements are replaced.
Influencer content disappears.
Claims may be modified immediately after a cease-and-desist letter arrives.
Evidence should therefore be preserved before enforcement begins whenever possible.
Useful evidence can include complete screenshots, URLs, dates and timestamps, videos, packaging, labels, brochures, email campaigns, social media content, testimonials, customer reviews, technical specifications, comparison charts, testing data, clinical studies, survey evidence, archived webpages, and promotional materials.
Evidence concerning commercial injury can also be important.
That may include sales information, lost opportunities, customer communications, evidence of diversion, changes in demand, distributor concerns, or other information showing how the challenged advertising affected the claimant’s business.
The evidence required depends on the particular theory.
A literal technical falsity dispute may turn heavily on scientific or testing evidence.
An implied-falsity claim may require evidence concerning consumer perception.
19. Should You Send a False Advertising Cease-and-Desist Letter?
A cease-and-desist letter can be an effective first step in some false advertising disputes.
A demand may identify the challenged advertising, explain the allegedly false or misleading factual representations, provide supporting evidence, request withdrawal or correction, demand preservation of evidence, seek changes to packaging or online content, or open settlement discussions.
The claim should be evaluated carefully before the letter is sent.
A business should determine exactly what representation it is challenging and whether the statement is objective and verifiable.
It should also consider whether the statement may constitute puffery, whether the claim is literally false or allegedly misleading, whether consumer evidence may be necessary, whether reliable technical support exists, whether the representation is material, and whether the claimant can establish commercial injury.
Urgency matters as well.
In some situations, immediate injunctive relief may be more important than a prolonged exchange of demand letters.
A weak or poorly supported false advertising demand can escalate a competitive dispute without strengthening the claimant’s legal position.
20. Can a Court Stop False Advertising Through an Injunction?
Yes, when the applicable requirements for injunctive relief are satisfied.
Federal courts can issue injunctions for Lanham Act violations in accordance with principles of equity.
A false advertising injunction may potentially require a defendant to stop making specified claims, modify packaging, remove advertisements, discontinue a comparison, revise promotional materials, or use appropriate qualifications.
In some circumstances, courts may also order corrective notices or other remedial advertising.
Temporary restraining orders and preliminary injunctions may be available where immediate relief is justified and the applicable legal requirements are established.
An injunction is not automatic merely because a competitor alleges that advertising is false.
The claimant must establish the requirements for the requested form of preliminary or permanent relief.
For businesses facing a major product launch or rapidly spreading comparison campaign, stopping the advertisement can sometimes be more commercially important than obtaining monetary damages later.
21. What Damages Are Available for False Advertising?
Section 35 of the Lanham Act governs monetary remedies for qualifying Section 43(a) violations.
Potential remedies may include the defendant’s profits, damages sustained by the plaintiff, costs of the action, and reasonable attorney’s fees in exceptional cases.
Those remedies are not automatically awarded in every successful false advertising case.
The claimant may need to establish commercial injury, causation, lost sales, profits attributable to the challenged conduct, corrective expenses, or other measurable harm.
Lexmark is particularly important because it requires proximate causation between the alleged Lanham Act violation and the plaintiff’s commercial injury.
Depending on the dispute, injunctive relief may ultimately be more valuable than a damages award.
A company preparing for a major launch may primarily want a competitor to stop making a false superiority claim before the advertising materially distorts the market.
22. What Defenses Can Be Raised?
A false advertising accusation does not establish liability.
One of the most important defenses is that the challenged statement is true.
Other potential defenses may include that the advertisement does not communicate the alleged message, the statement constitutes nonactionable puffery or opinion, the representation is not material, the communication does not qualify as commercial advertising or promotion, consumers are not misled, the claimant lacks commercial injury, or the alleged injury was not proximately caused by the advertisement.
A defendant may also argue that the comparison is accurate, the testing supports the statement, qualifying disclosures are adequate, or the plaintiff’s interpretation of the advertisement is unreasonable.
Additional procedural, evidentiary, statutory, constitutional, and equitable defenses may apply depending on the facts.
Truthful comparative advertising is not unlawful merely because a competitor dislikes being compared.
23. How Can Cohn Legal Help With False Advertising Claims?
Cohn Legal, PLLC assists businesses with false advertising matters involving competitor disputes, trademark-related advertising issues, comparative claims, product representations, packaging, and other commercial communications.
A false advertising matter can begin by identifying the exact advertisement and factual representation being challenged.
That analysis may include determining whether the claim is literal or implied, whether it is objectively verifiable, what testing or evidence exists, how consumers understand the message, whether the claim is material, and whether the claimant can demonstrate commercial injury.
Cohn Legal can assist with Lanham Act false advertising claims, competitor advertising disputes, comparative advertising, false association and false designation matters, product packaging and labeling disputes involving Lanham Act issues, cease-and-desist letters, responses to false advertising demands, advertising claim review, evidence preservation, settlement negotiations, injunctive-relief strategy, federal litigation, and applicable New York unfair competition or false advertising claims.
Where advertising involves highly regulated products or specialized federal regulatory frameworks, representation may also require coordination with appropriate regulatory counsel.
The objective is not simply to identify advertising that sounds exaggerated.
An effective false advertising strategy should determine what factual message consumers actually receive, whether that message can be shown to be false or misleading, whether the claim is material to purchasing decisions, and whether the claimant can connect the advertising to legally cognizable commercial harm.
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FAQ
False Advertising Frequently Asked Questions
Is every misleading advertisement a Lanham Act violation?
No.
A private Lanham Act plaintiff must satisfy additional requirements involving commercial advertising or promotion, falsity or misleadingness, materiality, commercial injury, and causation.
Is false advertising the same as trademark infringement?
No.
Trademark infringement generally focuses on confusion about source, sponsorship, affiliation, or approval.
False advertising focuses on false or misleading factual representations in commercial advertising or promotion.
A dispute may involve both theories.
Does a false advertising plaintiff have to be a direct competitor?
Not categorically.
The Supreme Court rejected a rigid direct-competitor requirement in Lexmark.
The plaintiff must instead establish the required commercial interest and proximate causation, including injury to reputation or sales.
Can consumers sue under the Lanham Act for false advertising?
Ordinary consumer injury generally does not satisfy the commercial-interest framework applicable to Lanham Act false advertising claims.
Consumers may have separate rights under state consumer-protection statutes or other laws.
What is literally false advertising?
Literally false advertising communicates a factual message that is untrue.
In some circumstances, advertising can also be literally false by necessary implication when its words and images necessarily communicate an unambiguous false factual message.
What is impliedly false advertising?
An advertisement can be impliedly false when it communicates a misleading message even though the express words are not literally false.
Consumer-perception evidence can become particularly important in these cases.
Do I need a consumer survey to prove false advertising?
Not always.
When a claim is unambiguously and literally false, consumer-perception evidence may not be required to establish the message conveyed.
For an ambiguous or impliedly misleading claim, surveys or other evidence of consumer understanding can become more important.
Can pictures make an advertisement false even when the words are accurate?
Potentially.
Advertising is evaluated in context.
Images, headlines, layout, product demonstrations, comparisons, and disclosures can collectively communicate a factual message that is not expressly stated in the text.
Is saying “we are the best” false advertising?
Not necessarily.
Broad subjective claims such as “the best” may constitute puffery.
A statement such as “ranked #1 in independent nationwide testing” is different because it communicates specific verifiable facts.
Can I advertise that my product is better than a competitor’s?
Yes, when the comparison is truthful and nondeceptive.
The underlying data, products, conditions, pricing, and qualifications should support the comparison being made.
Can I name my competitor in an advertisement?
Potentially.
Comparative advertising can expressly identify a competitor.
Trademark and false advertising issues may arise depending on how the competitor’s mark is used and whether the comparison is accurate.
What does “clinically proven” mean in advertising?
A claim such as “clinically proven” represents that qualifying clinical evidence supports the advertised proposition.
The required support depends on the claim communicated and the applicable regulatory framework.
Does an advertiser need support before making an objective claim?
Under FTC standards, advertisers generally should possess a reasonable basis for objective advertising claims before dissemination.
The appropriate level of support depends on the type of representation and context.
Can a competitor win a Lanham Act case merely because the advertiser lacks substantiation?
Not necessarily.
FTC substantiation requirements and private Lanham Act litigation are distinct.
A private plaintiff ordinarily must establish that the challenged representation is false or misleading, not merely that the advertiser failed to provide enough proof on demand.
Can leaving information out of an advertisement be deceptive?
Potentially.
An omission can make advertising deceptive when it materially alters the message consumers receive.
For a Lanham Act claim, the important question is whether the advertisement as communicated contains a materially false or misleading representation.
Can packaging constitute false advertising?
Potentially.
Packaging and labels can communicate claims concerning product ingredients, qualities, origin, performance, or other commercial characteristics.
Qualifying competitor claims can fall within the Lanham Act.
Can online advertisements and social media posts violate false advertising laws?
Yes.
Truth-in-advertising principles apply to digital advertising as well as traditional advertising.
Websites, sponsored posts, influencer content, online marketplaces, email, videos, and other digital marketing can all raise advertising issues.
Do influencers have to disclose that they were paid?
Material connections between advertisers and endorsers may require clear disclosure when consumers would not reasonably expect the relationship and the connection could affect how they evaluate the endorsement.
Can a company use customer testimonials?
Yes.
Testimonials must nevertheless comply with applicable advertising standards and should not be used to communicate deceptive claims that the advertiser itself could not lawfully make.
Are fake reviews prohibited?
Certain fake and false review practices are expressly prohibited under the FTC’s Consumer Reviews and Testimonials Rule, which took effect October 21, 2024.
Can a company pay customers for reviews?
Compensation is not automatically prohibited in every circumstance.
However, the FTC rule prohibits certain incentives conditioned on the review expressing a particular positive or negative sentiment.
Other disclosure requirements may also apply.
Can employees post reviews of their employer’s products?
Special rules can apply to undisclosed insider reviews and testimonials.
Employee, officer, manager, or agent relationships should be evaluated under applicable FTC review and endorsement requirements.
Can buying fake followers create legal problems?
Potentially.
The FTC’s Reviews and Testimonials Rule addresses the buying and selling of certain fake indicators of social media influence when applicable knowledge and commercial-purpose requirements are satisfied.
Can I report suspected false advertising to the FTC?
Yes.
The FTC accepts reports concerning potentially deceptive business practices.
The agency determines whether to investigate or pursue enforcement.
Reporting conduct to the FTC is separate from bringing a private Lanham Act action.
Can I send a cease-and-desist letter over false advertising?
Yes.
A business can demand that a competitor withdraw or modify allegedly false advertising.
The factual and legal basis for the claim should be evaluated before the demand is sent.
Do I have to send a cease-and-desist letter before suing?
No universal Lanham Act rule requires a demand letter before every false advertising lawsuit.
The appropriate sequence depends on the evidence, urgency, and enforcement strategy.
Can I get a preliminary injunction against false advertising?
Potentially.
A federal court may issue preliminary injunctive relief when the applicable legal requirements are satisfied.
Can a court require corrective advertising?
Potentially in appropriate cases.
Corrective notices or advertising may be available as part of an equitable remedy, but they are not automatic.
Can I recover lost sales caused by false advertising?
Potentially.
Lanham Act remedies can include damages sustained by the plaintiff, subject to proof of injury and causation.
Can I recover the advertiser’s profits?
Potentially for qualifying Section 43(a) claims, subject to the Lanham Act’s remedial provisions and equitable principles.
Can I recover attorney’s fees?
Potentially.
The Lanham Act permits attorney’s fees to the prevailing party in exceptional cases.
They are not automatically awarded.
Does New York have a false advertising statute?
Yes.
New York General Business Law § 350 prohibits qualifying false advertising in business, trade, commerce, and services within the state.
Can someone privately sue under New York false advertising law?
Potentially, when the statutory requirements are satisfied.
New York law provides a private remedy including injunctive relief and specified monetary remedies for qualifying violations.
Can advertising comply with another federal regulatory scheme and still create a Lanham Act claim?
Potentially.
The Supreme Court’s POM Wonderful decision confirmed that compliance issues involving another federal regulatory framework do not necessarily eliminate a competitor’s Lanham Act claim.
The interaction depends on the particular statute, product, and claim involved.
What should I do if a competitor is making false claims about my product?
Preserve the advertising before it changes.
Identify the exact factual statement, why it is false or misleading, what evidence supports that conclusion, where the claim was disseminated, whether it is material to purchasing decisions, and how it is affecting your business.
Those facts can then be evaluated for a demand letter, negotiation, injunction, litigation, or another appropriate response.
What should I do if my company receives a false advertising demand?
Preserve the challenged advertising, testing, research, disclosures, campaign records, and substantiation materials.
The next step is to determine what message the advertisement actually communicates and whether the claimant can establish falsity, materiality, commercial injury, and causation.
Challenge False Advertising Before It Distorts the Market
False advertising disputes can affect product launches, purchasing decisions, pricing, reputation, distributor relationships, market share, and the competitive position of a business.
An effective Lanham Act claim requires more than showing that a competitor’s advertising appears exaggerated.
The challenged representation should be identified precisely.
The factual evidence should support whether the message is false or misleading.
Its materiality to purchasing decisions should be evaluated.
And the claimant should be able to connect the advertising to injury to its protected commercial interests.
Cohn Legal assists businesses with Lanham Act false advertising disputes, competitor advertising matters, trademark-related advertising claims, cease-and-desist strategy, injunctive relief, settlement negotiations, and related federal and New York claims.
