Category Archives: False Advertising

Social Media Fan Accounts: Honoring a Celebrity’s Brand or a Trademark Violation?

Social media has become a powerful marketing tool, allowing celebrities to develop their brands and images with the help of Facebook updates or Tweets that can reach millions of fans at the same time. Given the importance of social media as a brand-building medium, how should the law treat “fan accounts,” which are created by […]

Crowd-Sourced Review Website May Incur Lanham Act Liability For Selectively Deleting Reviews

Today’s consumers depend on “crowd-sourced” review websites like Angie’s List and Yelp, which permit users to post and read reviews of goods and services.  Businesses feel a corresponding pressure to encourage favorable reviews on such websites.  But what happens when the website intervenes to regulate the reviews it hosts, perhaps (for example) by deleting reviews […]

Nobody Does it Better: Puffery or False Advertising?

A recent decision resolving an advertising dispute between Campbell Soup Company and Tropicana Products, Inc. reinforced what we know to be empirically true:  simply claiming to be the “best” really doesn’t mean much at all.  See Tropicana Products, Inc., NAD Case Report No. 5610 (July 3, 2013). It’s usually just hyperbole, a tool in the […]

False Advertising: Supreme Court to Decide Who Can Sue

The Supreme Court has recently agreed to hear argument in Lexmark v. Static Control that will strike at the very heart of false advertising jurisprudence by asking who is allowed to bring false advertising claims.  The Lanham Act states that such claims may be brought “by any person who believes that he or she is […]

The APP STORE Trademark Wars: New Year’s Installment

Amazon has recorded another success in its battle with Apple over use of the term APP STORE.  The U.S. District Court in California has granted Amazon’s motion for summary judgment on Apple’s claim of false advertising arising from Amazon’s use of the term APP STORE (or APPSTORE in practice) in connection with Amazon’s online store […]

SORT OF THE RINGS: Will Trademark Fair Use Protect Age of the Hobbits?

In August of this year, Warner Brothers finally announced the release of Age of the Hobbits, Peter Jackson’s long-awaited follow-up to his Lord of the Rings trilogy, based on J.R.R. Tolkien’s famous fantasy novels. Age of the Hobbits tells the tale of a clever group of diminutive Indonesian tribesmen who convince Chinese actress Bai Ling […]

FTC’s 2012 Green Guides: What Does It Mean for Your Advertising Strategy?

The Federal Trade Commission released its much anticipated “Green Guides” earlier this month. As discussed here, on Foley Hoag’s Law & the Environment blog, the guides seek to rein in the use of specious environmental marketing claims by ensuring that marketers have competent and reliable scientific evidence to back up express and implied environmental claims. […]

FTC Set to Adopt New Rules to Speed Up Investigations, But Will They Work?

The Federal Trade Commission recently finalized changes to its investigative procedures. The changes are intended to streamline a process that has, in recent years, become increasingly lengthy and unwieldy. The driving force behind the changes, which will become effective November 9, 2012, is the ever-increasing pace of technology, in particular its effect on the amount […]

Lanham Act Dust Up Over Vacuum Cleaner Claims Clarifies Literally False Standard

A federal district court in Massachusetts was recently sucked into a false advertising dispute between manufacturers of competing vacuums and steam cleaners over alleged violations of Section 43(a) of the Lanham Act. The plaintiff, Euro-Pro Operating LLC (“Euro-Pro”), which manufactures the popular “Shark” steam mop and “Shark Navigator” vacuum, filed suit against the defendant, TTI […]

FTC Up To 75% More Likely to Curtail “Up To” Claims in the Wake of Recent Report*

*75% is only the author’s opinion. Actual likelihood may vary. In the midst of one of the most brutal heat waves in recent history, the FTC has published a research study taking window manufacturers to task for, among other things, making aggressive “up to” claims regarding savings on air conditioning bills. (In case you were […]

Man Versus Machine: iPhone 4S User Files Class Action Against Apple, Alleges Siri Won’t Do As Told

Frank Fazio, a disgruntled iPhone 4S user from New York, recently filed a federal class action lawsuit against Apple in California, alleging that the Siri feature of the iPhone 4S does not work as advertised. For those of you who still use pay phones, Siri is a virtual assistant that uses voice recognition to answer questions and perform tasks that would otherwise require typing, such as making calls, sending text messages, scheduling meetings, and getting directions. Mr. Fazio alleges that he purchased an iPhone 4S in November 2011 based on representations made by Apple regarding the Siri feature but began noticing problems right away.

Strategies for Controlling Costs in False Advertising Cases: Consider NAD

False advertising is an expensive business model. In a recent case involving infomercials for coral calcium supplements which allegedly cure cancer (among other things), the First Circuit affirmed an order requiring the defendants to disgorge nearly $50 million in gross revenues — not just profits — on the ground that the “consumer loss” was an […]

TIFFANY Update: False Advertising Claim Rejected

In what would appear to be the final chapter of the battle between online giant eBay and luxury jeweler Tiffany, a Southern District of New York judge has bounced Tiffany’s false advertising claim, the only claim remaining following a Second Circuit decision earlier this year.    On remand, the district court focused on whether eBay’s […]