A party can sue its competitor under the Lanham Act for false advertising. To prevail on a false advertising claim under the Lanham Act, a plaintiff must prove the following: (1) a false or misleading statement of fact; that is (2) used in a commercial advertisement or promotion; that (3) deceives or is likely to deceive in a material way; (4) in interstate commerce; and (5) has caused or is likely to cause competitive or commercial injury to the plaintiff.

Two types of advertising claims are actionable under the Lanham Act: (1) statements that are literally false; and (2) statements that are literally true, but likely to mislead, confuse, or deceive. Specific claims of false objective facts are, of course, the easiest to prove. Statements of opinion or general claims of superiority—often called puffery—are not typically

actionable under the Lanham Act. However, a plaintiff might recover on a superiority claim if, for example, the challenged advertisement makes a direct comparison to a competitor’s product. A plaintiff can recover under the Lanham Act for misleading statements that are literally true but have deceived or has a tendency to deceive. A party that prevails in a false advertising claim may be entitled to an injunction against the false or misleading advertising, damages and in exceptional cases, attorneys’ fees.

It is important to note that consumers do not have standing under the Lanham Act, only competitors. The Supreme Court in Pom Wonderful LLC v. Coca Cola explained why the Lanham Act utilizes competitors to police the marketplace: “Competitors who manufacture

or distribute products have detailed knowledge regarding how consumers rely upon certain sales and marketing strategies. Their awareness of unfair competition practices may be far more immediate and accurate than that of agency rulemakers and regulators.” Thus, the “Lanham Act draws upon this market expertise by empowering private parties to sue competitors to protect their interests on a case-by-case basis.”

It is important to hire an intellectual property attorney experienced in false advertising cases such as Erica W. Stump to analyze your case. The team at the law firm of Erica W. Stump, P.A. has experience litigating false advertising cases under the Lanham Act.