False Advertising Claims
By Joseph W Payne
Instructor: Maureen Martinous
Submitted on January 22, 2012
The Lanham Act is a law that contains the statutes of trademark law in the United States, and is often referred to as “The Trademark Act.” However, one significant provision is Section 43, which provides the basis for claims against another company for false advertising. Under Section 43 of the Lanham Act, a claim of false advertising can be based on literal falsity or implied falsity. Both cases are difficult to prove and very expensive to litigate. Businesses should be careful when thinking about pursuing such claims.
Since the Lanham Act itself, initially passed in 1946 and then revised in 1988, does not provide much detail about its provisions, it has been left to courts to interpret its meaning and determine how suits can be brought under this section, and such interpretations are still going on today. Today, courts place false or misleading advertisements into three categories: puffery, implied falsity, and literal falsity. Puffery refers to exaggerated claims that a company might make, like “our product tastes great!” or “this is the best stuff in the world!” Such claims may or may not be true, but they don’t rise to the level of being misleading, so are not designated as illegal, and therefore are not subject to litigation. False advertising, on the other hand, is illegal, and can be litigated.
The illegal form of false advertising falls into two further categories: literal falsity and implied falsity. Literal falsity means that it is literally false and is not true. Someone is lying or something is totally false and they are trying to pass it off as the truth. For example, saying that your product contains no salt when it in fact has 300 mg. of salt per serving would be a literal falsity. Implied falsity means that the message has a tendency to mislead, confuse, or deceive the public even though it may not be...