Category Archives: False Advertising

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The FTC Social Media Consent Order Against SmartClick

The FTC continues its efforts to combat deceptive social media advertising. Recently, the FTC brought an enforcement action against SmartClick Media LLC and its owner. The FTC alleged that SmartClick engaged in the following deceptive and misleading conduct: (1)        operating a “Doctor Trusted” certification program under which “Doctor Trusted” seals were sold for use … Continue Reading

FTC Acts Against Warner Bros.’ YouTube Promotion Campaign

Last week, the FTC announced an agreement containing a consent order, subject to final approval, resolving its claims against Warner Bros. Home Entertainment Inc. (Warner Bros.) for the company’s misleading use of social media influencers to promote one of its video games before its official release in violation of Section 5(a) of the Federal Trade … Continue Reading

The FTC’s Analysis of Lord & Taylor’s Social Media Marketing Campaign

New ways of monetizing digital media has brought challenges in regulating advertising. The FTC has recently issued guidelines to provide businesses and advertisers with insights as to how to comply with the FTC Act. Despite the new context, the governing legal standard remains fact specific and quite familiar. In December 2015, the FTC issued its … Continue Reading

The 2015 FTC Policy Statement: An Advertisement Can Be Deceptive Based On Formatting

Starting a few years ago, the FTC began increasing its efforts to address online disclosures in new media. For example, in 2013, the FTC issued .com Disclosures: How To Make Effective Disclosures in Digital Advertising, which provided new guidance for mobile and other online advertisers on how to make online disclosures clear and conspicuous to … Continue Reading

FLANAX: Protecting Foreign Marks from US Unfair Competition Under Section 43(a)

In today’s increasingly global economy, trademark owners are more frequently butting up against the territorial limitations of trademark law. It has long been a matter of black letter law that trademark rights are territorial, subsisting only within the borders of the country where they are obtained.  This general rule can present serious obstacles to foreign … Continue Reading

False Advertising Bombs and Firecrackers

On May 13, 2015, in Conopco, Inc. v. Wells Enterprises, Inc., the Southern District of New York denied a motion to dismiss a claim for false advertising which arose from a claim that an ice-pop product was “original.”  Wells Enterprises, Inc. (“Wells”) is the largest privately held, family owned ice cream and frozen treat manufacturer … Continue Reading

False Advertising By Ad Agencies: No Easy Dismissals

On April 20, 2015, in Nestle Purina Petcare Company v. The Blue Buffalo Company, Ltd., the Eastern District of Missouri denied a motion to dismiss claims for false and misleading advertising brought against the advertising agencies that developed and executed the subject ad campaign.  In May 2014, Plaintiff Nestle Purina PetCare Co. (“Purina”) filed a … Continue Reading

Is POM Wonderful?

Section 43(a) of the Lanham Act provides a private right of action for companies to sue their competitors for a wide variety of “false or misleading” commercial statements. Classic false advertising claims involve a defendant’s false or misleading statements either about its own or a competitor’s product when those statements lead to the plaintiff’s lost … Continue Reading

False Advertising Claims Challenging Scientific Discourse

The Fifth Circuit recently distinguished Second Circuit precedent in determining what scientific discourse may constitute false advertising. In Eastman Chemical Company v. Plastipure, Incorporated; Certichem, Incorporated, 2014 WL 7271384 (5th Cir. Dec. 22, 2014) (“Eastman Chemical”), plaintiff alleged that defendants made false scientific statements about plaintiff’s product, “Tritan,” following a scientific study of Tritan.  Those … Continue Reading

Should Rule 9(b) Govern Pleading of Lanham Act False Advertising Claims?

In Cocona, Inc. v. Singtex Industrial Co., Ltd., 2014 WL 5072730 (D. Colo. Oct. 9, 2014), the U.S. District Court for the District of Colorado joined the ongoing debate about whether heightened pleading is required for Lanham Act false advertising claims. Noting the absence of any prior authority from the Tenth Circuit or the District … Continue Reading