Also known as: false advertisement · falsely advertise · falsely advertising · falsely advertised · deceptive advertising · misleading advertising
Written by attorneys · grounded in primary & secondary sources — see below
A tortious act consisting of distributing an advertisement that is untrue, deceptive, or misleading. The act encompasses false statements of fact about the characteristics, quality, or geographic origin of goods, services, or commercial activities and is actionable by competitors or consumers who reasonably believe they have been or are likely to be damaged.
Faith Fitzgerald films a television spot showing herself arguing before a jury and winning a verdict. In reality she has never tried a case to conclusion before a jury. Viewers who retain her based on the commercial later discover the misrepresentation and complain to the bar.
Foxfire Biotech opens a chain of quick-service eateries using the same color scheme, layout, and signage as an established competitor. Customers enter believing they are patronizing the original chain and the competitor loses sales.
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Foster Forge advertises replacement toner cartridges as compatible with Lexmark printers when the cartridges actually damage the printers. Static Control Components, a supplier of compatible parts, loses sales and sues under the Lanham Act.
Bidder’s Edge scrapes eBay listings and advertises its own service as providing real-time auction data identical to eBay’s. eBay loses user traffic and files suit alleging false advertising among other claims.
AT&T Mobility runs national ads promising unlimited data without disclosing throttling after a usage cap. Customers who switch carriers based on the ads later discover the limitation and bring claims.
College Savings Bank advertises its prepaid tuition plans as fully insured by a state agency when the plans lack that backing. Florida Prepaid loses enrollment and sues for false advertising.
A plaintiff must show a false statement of fact in a commercial advertisement that misrepresents the nature, characteristics, qualities, or geographic origin of goods or services, that the statement actually deceives or has the tendency to deceive a substantial segment of consumers, and that the plaintiff has been or is likely to be injured as a result.
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No. Exaggerated opinions or vague boasts that no reasonable consumer would rely on as factual statements are considered puffing and are not actionable as false advertising.
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Yes. Under the Lanham Act a plaintiff need only show that the false statement is likely to influence purchasing decisions. Proof of actual confusion is not required for injunctive relief though it strengthens a damages claim.
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False advertising involves false statements about the defendant’s own goods or services. Trade disparagement involves false statements about a competitor’s goods or services.
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…Lexmark’s. Lexmark sued for copyright infringement, but Static Control counterclaimed, alleging that Lexmark engaged in false or misleading advertising in violation of §43(a) of the Lanham Act, 15 U. S. C. §1125(a), and that its misrepresentations had caused Static Control lost sales and damage to its business reputation. The District…