™️Trademark Law Unit 9 – False Advertising and Unfair Competition

Key Concepts and Definitions

• False advertising involves making untrue or misleading statements about a product or service to deceive consumers
• Unfair competition encompasses various deceptive practices that harm competitors and consumers (passing off, misappropriation)
• Puffery refers to exaggerated or hyperbolic claims that are not meant to be taken literally ("best coffee in the world")
  • Puffery is generally permissible as it is not considered deceptive
• Materiality means the false or misleading statement is likely to influence a consumer's purchasing decision
• Deceptive pricing includes tactics like fictitious pricing, price comparisons, and bait-and-switch offers
• Comparative advertising directly or indirectly compares a company's product to a competitor's (Pepsi Challenge)
• Endorsements and testimonials must reflect the honest opinions and experiences of the endorser
• Substantiation requires advertisers to have a reasonable basis for their claims before disseminating them

Legal Framework and Regulations

• The Federal Trade Commission (FTC) is the primary federal agency responsible for regulating false advertising and unfair competition
• Section 5 of the FTC Act prohibits "unfair or deceptive acts or practices" in commerce
• The Lanham Act allows competitors to sue for false advertising that damages their business
• State consumer protection laws (Unfair and Deceptive Acts and Practices or UDAP statutes) provide additional remedies
• Industry-specific regulations govern advertising in certain sectors (pharmaceuticals, financial services)
• The National Advertising Division (NAD) of the Better Business Bureau offers a self-regulatory dispute resolution process
• The FTC's Guides Concerning the Use of Endorsements and Testimonials provide standards for endorsement advertising
• The FTC's ".com Disclosures" guide addresses how to make effective disclosures in digital advertising

Types of False Advertising

• False or misleading claims about a product's features, benefits, or effectiveness
• Deceptive pricing tactics (fictitious former prices, false "free" offers)
• Unsubstantiated health or safety claims (weight loss supplements)
• Misrepresenting the geographic origin of a product (falsely claiming "Made in USA")
• Bait-and-switch advertising that lures consumers with an attractive offer but delivers something else
• Manipulated reviews or endorsements that mislead consumers
• Greenwashing or false environmental claims (biodegradable, recyclable)
• Failure to disclose material information (hidden fees, safety risks)

Elements of Unfair Competition

• Passing off or palming off involves misrepresenting the source of goods or services to capitalize on a competitor's goodwill
• Misappropriation is the unauthorized use of a competitor's intangible assets (trade secrets, publicity rights)
• Trade disparagement or commercial defamation involves false statements that harm a competitor's reputation
• Tortious interference occurs when a company intentionally disrupts a competitor's business relationships
• Predatory pricing involves selling below cost to drive competitors out of the market
• Tying arrangements condition the sale of one product on the purchase of another, unrelated product
• Deceptive cybersquatting uses domain names to mislead consumers about the source of a website
• Industrial espionage involves theft of trade secrets to gain a competitive advantage

Famous Cases and Precedents

• In FTC v. Colgate-Palmolive Co. (1965), the Supreme Court held that a mock-up demonstration of shaving cream was deceptive
• Coca-Cola Co. v. Tropicana Products, Inc. (1982) found Tropicana's "from concentrate" claim to be false advertising
• In Pizza Hut, Inc. v. Papa John's International, Inc. (2000), the court ruled that Papa John's "Better Ingredients. Better Pizza." slogan was puffery
  • However, false statements about ingredient quality were actionable false advertising
• POM Wonderful LLC v. Coca-Cola Co. (2014) allowed a Lanham Act false advertising claim to proceed despite FDA regulations
• Lexmark International, Inc. v. Static Control Components, Inc. (2014) established the standard for competitor standing under the Lanham Act
• FTC v. Roca Labs, Inc. (2015) found that prohibiting negative reviews through "gag clauses" was an unfair practice
• Casper Sleep, Inc. v. Derek Hales and Halesopolis LLC (2016) involved allegedly fake reviews on a mattress review site
• FTC v. Teami, LLC (2020) required Instagram influencers to clearly disclose their connections to the tea brand they promoted

Enforcement and Penalties

• The FTC can issue cease-and-desist orders, require corrective advertising, and impose civil penalties up to $43,792 per violation
• State attorneys general can enforce UDAP laws through injunctions, civil penalties, and restitution
• Competitors can sue for injunctive relief, damages, and corrective advertising under the Lanham Act
  • Damages may include the defendant's profits, any damages sustained by the plaintiff, and costs of the action
• Consumers can bring class actions under state UDAP laws to recover damages and attorneys' fees
• Criminal penalties may apply for egregious cases of false advertising or unfair competition
• Advertisers may face negative publicity, reputational harm, and loss of consumer trust
• Violators may be required to implement comprehensive compliance programs and submit to ongoing monitoring
• International enforcement cooperation (U.S. SAFE WEB Act) targets cross-border deceptive practices

Defenses and Exceptions

• Puffery defense argues that the challenged claim is mere exaggeration, not a factual representation
• First Amendment defenses protect certain forms of commercial speech from regulation
• Compliance with industry-specific regulations (FDA, EPA) may provide a safe harbor
• Nominative fair use allows the use of a competitor's trademark to refer to their product for comparative purposes
• Mere puffery and opinion are generally not actionable as false advertising
• Disclaimers and disclosures can clarify potentially misleading claims but must be clear and conspicuous
• Lack of materiality suggests the challenged claim would not affect consumer decisions
• Absence of injury or likelihood of injury to consumers or competition

Impact on Consumers and Businesses

• False advertising and unfair competition can lead to consumer deception, mistaken purchases, and economic harm
• Deceptive practices undermine fair competition and disadvantage honest businesses
• Unfair competition stifles innovation and limits consumer choice by driving competitors out of the market
• False advertising can create unrealistic expectations and erode consumer trust in the marketplace
• Businesses may suffer reputational damage, loss of sales, and increased legal expenses
• Enforcement actions and litigation can result in significant financial penalties and corrective measures
• Increased compliance costs as businesses navigate complex advertising regulations and mitigate legal risks
• Negative publicity surrounding false advertising can lead to boycotts and long-term damage to brand equity