Do I Have a Lanham Claim Against My Competitor for False Advertising?

Are you the victim of false advertising by a competitor? If you believe you may have a Lanham Act claim, do not overlook the value of incorporating a well-designed, scientifically sound consumer survey into your case strategy.

Keegan & Donato Consulting provides a complete suite of services, including consultation on litigation strategy for both plaintiff and defendant clients, consumer research studies, expert reports, testimony in trademark/trade-dress litigation, testimony at deposition and/or trial, and rebuttal of opposing parties’ surveys when applicable.

Principals Mark Keegan and Tony Donato offer more than 25 combined years of expertise. When your case involves a determination as to whether a competitor’s trademark or advertisement causes consumers to be misled or confused, we can help.

False Advertising Claims

The Lanham Act, as codified in 15 U.S. Code §1125, is the statutory basis for most trademark claims. The false advertising section (commonly known as Section 43(a)) gives competitors a cause of action against rivals who engage in misleading advertising or labeling.

Issues raised in the Lanham Act are well-suited to testing through consumer research by addressing the ways in which consumers interpret—and misinterpret—names, symbols, and other marks used by businesses in commerce. In fact, the evidence derived can be very persuasive.

Trademarks (e.g., brand names, product names, slogans) and trade names may also be challenged as false or misleading in situations such as:

• Class actions brought by consumers under deceptive trade practice and unfair competition laws
• Challenges by a competitor before the National Advertising Division (NAD) of the Council of Better Business Bureaus
• Actions initiated by the NAD against advertisers
• Actions initiated by the Food and Drug Administration (FDA) for deceptive labeling and advertising
• Challenges brought by the Federal Trade Commission under the FTC Act for unfair and deceptive acts and practices (including deceptive marks)

Value of Hiring a Survey Expert

Employing a qualified survey expert will affect whether or not your survey results are deemed admissible. In Dardenne v. MoveOn.org Civil Action, CIV. A. 14-00150-SDD, 2014 WL 1364854, for example, the Court placed “little weight on the survey results for the reason that the survey’s methodology was fundamentally flawed in both its sampling and the questions employed.”

Keegan & Donato Consulting takes all necessary steps to ensure that our consumer research studies have a solid methodological foundation that can withstand the rigors of litigation. We have designed, executed, and critiqued hundreds of surveys that have been admitted into evidence in federal and state courts, before arbitration panels, the TTAB, the NAD, and other venues.

When your case involves a Lanham Act claim against a competitor for false or misleading advertising, get in touch with Keegan & Donato Consulting at (914) 967-9421 to take advantage of our training, expertise, and data-gathering expertise.

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