False Advertising Under the Lanham Act


Usually, false advertising claims are brought under the Lanham Act, which is federal legislation located at 11 USD § and Minnesota’s Deceptive Trade Practices Act (“DTPA”). Below is an explanation of the Lanham Act.

The Lanham Act

The Lanham Act states, in relevant part:

(a) Civil Action

(1) Any person who, or in connection with any good or service, or any container for goods, uses in commerce any word, term, name, symbol, or device or any combination thereof, or any false designation or origin, false or misleading description of fact, or false or misleading representation of fact, which –


(B) in commercial advertising or promotion misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person’s goods, services or commercial activities,

Shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act.

15 U.S.C § 1125(a). In order to succeed on a claim under the Lanham Act, a plaintiff must prove the following elements:

  1. Defendant made false statements or fact about its own products or plaintiff’s products in its advertisement;
  2. Those advertisements actually deceived or have the tendency to deceive a substantial segment of their audience;
  3. The deception is material because it is likely to influence buying decisions
  4. Defendant caused its falsely advertised goods to enter interstate commerce; and
  5. Plaintiff has been or is likely to be injured as a result of these activities either through direct diversion or sales from plaintiff to defendant, or by injuring the goodwill its products enjoy with the buying public.

Lenscrafters, Inc. v. Vision World, Inc., 931 F. Supp. 1462, 1465-66 (D. Minn. 1996). Among the false advertising claims that can be brought under the Lanham Act are false description of goods or services, false advertising about the geographic origin of a good or service, and false comparative advertising. For example in McNeilab, Inc. v. American Home Products Corp., 848 F.2d 34 (2d Cir. 1988), the Second Circuit held that a misleading comparison implying that Advil is as safe as Tylenol in all respects deprived the manufacturer of Tylenol of a legitimate competitive advantage and “reduced consumers’ incentive to select Tylenol rather than Advil.”

In Lenscrafters, Inc. v. Vision World, Vision World ran advertisements called “This Week’s Eyewear Price Check,” which had comparisons of prices between the two parties. Lenscrafters brought suit because for each of these advertisements, the listed price for Lenscrafters is either weeks or months out-of-date. The Court held that it could not conclude that viewed in “context” a reasonable juror would be unable to find that the advertisements are literally false (the first element in a false advertising claim) and therefore denied Vision World’s motion for partial summary judgment.

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