False advertising occurs when one competitor makes false statements in an advertisement or promotion about its own product or service or those of a competitor. When this occurs, a harmed competitor can bring suit for false advertising under the Lanham Act. To prevail, the harmed competitor must show that (1) the advertiser ran or displayed an advertisement that stated one or more false facts about its own or a competitor’s offerings; (2) the advertisement actually misled or had a tendency to mislead a significant percentage of the target audience; (3) the misleading statement likely affected the purchasing decisions of those whom it reached when they purchased the product or service at issue; (4) the harmed competitor either lost sales to the false advertiser or suffered harm to its goodwill; and (5) the advertisement affected interstate commerce — a requirement that can usually be satisfied under the modern definition of interstate commerce. A harmed competitor can also seek related dress under California Business & Professions Code Section 17500 if the false advertising deceives customers or harms a business located in California.
We have substantial experience litigating claims for false advertising on behalf of plaintiffs and defendants.