Various state and federal laws protect consumers from false and misleading advertising. It is illegal for a business to make deceptive, misleading, or false claims about quality, pricing, or the purpose of its products. Those misled by this kind of fake advertising should contact an Orlando false and misleading advertising lawyer as soon as possible to learn their rights and what legal actions are available.
The difference between a false or misleading advertisement depends on the intent behind the act. Any published claim that is false or deceptive is a false advertisement. Ads that purposely share information about a product that gives a consumer an incorrect understanding is misleading advertising. These types of criminal practices can cause damages and financial losses to customers.
A consumer suffering a significant or small loss due to misleading or false advertisement practices isn’t the primary issue. The most important takeaway from these experiences is that they should never occur in the first place. Those who have suffered financial damages or any other kind of loss may seek compensation through a class action lawsuit.
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Many companies may use several deceptive tactics to lure potential customers to buy their products. It’s important to understand how these methods work if you are a business owner or think you are a victim.
Failure to disclose- This is a term used when businesses fail to inform consumers that an item or service is not available or its offer expired.
High-pressure sales tactics- This method is used to heavily pressure a consumer to purchase goods or services they don’t or weren’t planning on a purchase.
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Bait and switch advertising- This is an advertisement for products that businesses do not have intentions of selling or providing to customers. Often, enterprises promise services or items at a specific cost that initially attracts customers into the store. Once inside, the company attempts to sell different goods and services that cost more.
Artificially inflating prices- Businesses like to give the impression that there are great deals on their available products or services by overpricing the item based on false statements or advertisements.
Companies that face accusations of false advertising risk many penalties. The long-term damages to a company’s reputation and future business plans for this type of violation are severe. Some of the consequences a company might be forced to suffer are:
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It is illegal for companies to use deceptive practices when advertising their products or services. If found guilty of these advertisement methods, damages, attorney’s costs, and expensive fines may be levied against your corporation. These consequences make hiring an experienced Orlando false advertising defense lawyer critical to building a defense and protecting your company’s future.
The knowledgeable criminal defense attorneys of The Umansky Law Firm defend their clients against any state or federal white collar crime charges. Our over 100 years of combined legal experience helps us create an aggressive defense and work towards the best resolution to your case. Call to schedule a free case evaluation and discuss your next steps.False advertising cases remain a complicated area of intellectual property law. Jones Day’s Meredith Wilkes, Jessica Bradley, and John Froemming talk about the types of false advertising claims, explain who can sue, describe the available remedies, and review the recent decision in the
False advertising claims remain an intriguing area of intellectual property Law. JONES DAY's Meredith Wilkes, Jessica Bradley, and John Froemming Explain the types of false advertising claims, talk about a high profile case involving a Superbowl commercial, discuss how even advertising imagery can be the basis for a claim and once and for all, defining the puffery defense. I'm Dave Dalton, you're listening to JONES DAY TALKS.
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Cleveland partner, Meredith Wilkes co-leads JONES DAY's global trademarks, unfair competition and copyright's group. She's a lead trial lawyer that has focused on high stakes trademark, trade dress, trade secret, false advertising, and design patent litigation matters for global brands in federal and state courts for more than 20 years. Jessica Bradley, a Washington based partner, has more than 10 years of experience litigating trademark, trade dress, false advertising, unfair competition, dilution, and copyright cases. She also counsels clients on trademark clearance prosecution and enforcement, including representing clients before the trademark trial and appeal board. And partner John Froemming, also in Washington, is a trial lawyer with 34 years experience in intellectual property and false advertising litigation. John remains undefeated in all his trademark and design trials and district court cases over the past 10 years. He also co-leads JONES DAY's global intellectual property litigation practice.
All right, let's go to Meredith first. Meredith, when we talk about false advertising claims, it really goes back to the Lanham Act, which it was very broad in terms of what it addresses scope. But this was 1946 I believe, signed into law by President Truman, came into effect a year later in '47. Talk about the parts of the act that pertain specifically to false advertising.
Absolutely Dave. And you're right, it's been around for a long time. And yet we continue to look back at it and tweak it as is necessary. This term, the Supreme court's going to do that once, if not twice. But we're talking today about what's referred to as 43(a) or 15 U.S.C. 1125(a). and it speaks very broadly, to the use of any word or symbol or device or combination thereof to make false or misleading descriptions of fact, or false or misleading representations of fact and that'll put you on the hook for liability. And really what that's meant to encompass, are statements that you make about your own goods or statements that you would make about someone else's goods. So you can envision how that would have really, really broad implications.
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Basically any competitor or anybody else who qualifies as being in what's called the zone of interest. And basically that zone includes any company or a person who has been proximately injured, either economically or by way of harm to reputation, directly as a result of the false advertising.
The Supreme Court has basically said that when deception of consumers causes competitors to withhold trade from some other competitor or somebody within the zone of interest, then that person can generally sue. But the court has been pretty clear in saying that a mere consumer itself, isn't within that zone and can't sue. The court went so far as to say that a consumer who gets hoodwinked into buying something they're disappointed in, might well have some injury in fact, cognizable under article three, like under some state deceptive trade practice statute, but they won't have a claim under the Lanham Act.
Mainly, but the court also said that you don't have to necessarily be a direct competitor. In fact, in the Lexmark case, the defendant there had counterclaimed, even though it wasn't a direct competitor, but showed that the letters that the plaintiff, Lexmark, had sent to recyclers of toner cartridge, and who had basically bought the counter claimant's chips, claiming that if the counter claimant's chips were used, it would somehow violate the law and infringe Lexmark's IP rights. The court said, Hey, that's within the zone of interest. Even though they're not direct competitors, per se, there is an alleged reputational injury from disparagement of this nasty letter writing campaign. So that claim was allowed to proceed.
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Okay. That certainly makes sense, John, where can these cases be brought? What types of courts would hear a false advertising claim?
Pretty much any federal court, Dave, where there's personal jurisdiction and subject matter jurisdiction. It's a little bit different from like a patent infringement claim where the TC Heartland case has cut way back on the choice of forums that plaintiffs have. So generally, these cases tend to get filed where the plaintiff is based where the defendant is based or where there's substantial false advertising having this sort of proximate harm to reputation or to the pocketbook of the competitor or the plaintiff in the zone of interest.
Okay. Let's go to Jessica Bradley for a second. Jessica, can you run down for us the types of false claims and where they apply? There are at least three, correct?
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Yeah, it's actually really two main types and then some courts recognize a third. And the type of falsity you're claiming is actually pretty important, because it's going to control what a plaintiff actually needs to show to prove that the claim is false. So the first type is literal falsity, which is an explicit representation of fact that it's false on its face. It has to be unambiguously false. And for this type of claim, courts are going to presume that deception was caused. So you don't need to produce any, what we call extrinsic evidence, which is usually like a survey. You don't have to do that for literally false claim.
So the second type is implied falsity. And this is a claim that on its face is either literally true or ambiguous, but is misleading in context. So here, with an implied falsity claim, a plaintiff has to present extrinsic evidence, usually
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