Deceptive, False and Misleading Advertisements and Roots in Trademark Law

In the advertising world often times there are statements, comparisons and claims made about the following: a) one’s product or service; and b) a competitor’s product or service. Not only, should you review and make sure that you are not using another’s trademark or logo, but you have to make sure that you are not making any false or misleading statements.

An advertisement that deceives a consumer into buying your product or service can be the basis of false advertisement claim by the consumer or a competitor. Thus, when you claim that your product cures baldness you better have verifiable data that indicates your product cures baldness. If you claim that your milk shake helps reduces body fat more than a competitor’s milk shake, then you better be able to provide verifiable studies that indicate that your milk shake reduces body fat more than the leading competitor.

It is helpful to understand the general elements of a false advertising claim. A false advertising claim requires the following elements:

a) that there was a false or misleading statement about one’s product or another’s product;

b) that there is actual deception or at least a tendency to deceive a substantial portion of the intended audience;

c) that the deception is material in that it is likely to influence purchasing decisions;

d) that the advertised goods traveled in interstate commerce; and

e) that there is a likelihood of injury to the plaintiff in terms of declining sales, loss of goodwill, etc…

Considering and mitigating the risk of a false advertisement claim during the development of advertising, branding or marketing campaign may be crucial to protecting a company’s bottom-line. If you or someone you know has any concerns or questions regarding false advertisement claims, then please feel free to contact us.

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