Lanham Act False Advertising and Unfair Competition

In addition to protecting trademarks, the federal Lanham Act (15 U.S.C. §§ 1051,et seq.) provides a wide range of protections and remedies for and from acts of unfair competition and false advertising.

Business competitors can find themselves as parties in varying types of Lanham Act litigation. Lanham Act litigation can involve such matters as:

  • franchisors who file suit to protect their registered trademarks from unlawful continued use by renegade former franchisees,
  • a company that accuses one of its competitors of false advertising,
  • a company that accuses one of its competitors of unlawful use of a trademark or logo.

Who or what entities are included as a business's competitor can include not only head-to-head horizontal distributors of a similar product, but also the private label manufacturer that provides the allegedly offending product to the ultimate retailer.

The range and types of false advertising claims can include express or implied false statements and those that are false by necessary implication used in, for example, 1) television, radio, internet or print advertisements; 2) product packaging or labeling; 3) sales brochures or presentations; 4) other sales materials; or 5) oral representations.

Competitors that attempt to engage in comparative advertising of their products with those of other competitors can often be challenged as to the veracity of their claims of "superiority" or the accuracy of the tests used to support their comparative advertising. False advertising claims also extend to an advertiser's use of opinion and puffery.

Unlike common law unfair competition claims, which typically do not provide for awards of attorneys' fees, the Lanham Act affords courts with discretion to award judgments to successful plaintiff parties for the recovery of reasonable attorneys' fees and costs.

A defendant accused of violating the Lanham Act not only has liability exposure for the plaintiff's damages, but may be forced to reimburse the plaintiff for its reasonable attorneys' fees and costs incurred. Carrying insurance that provides coverage for advertising injuries may help protect your business from such claims.

If your business has been sued, your insurance policy (possibly through a CGL, BOP, E&O, or another specialized media policy of insurance) may provide not only coverage for the claim, but also for your business defending itself against the claim. Our attorneys can counsel and guide you through the insurance considerations that these situations can present.

The Lanham Act's depth and breadth is both deep and wide, and the attorneys at Fellheimer & Eichen have experience helping clients navigate its legal complexities. Whether your business is interested in asserting a Lanham Act claim against a competitor for damages it has sustained, or whether you have been sued for allegedly violating the Lanham Act, our attorneys have the knowledge and the experience to represent you and your business in the litigation of such claims.