What Pitfalls to Avoid & The Lanham Act, by Khalid Farwana

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      Khalid Farwana
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      In most cases, the failure to comply with the provisions of the Lanham Act means that a business can face litigations from both the affected competing businesses and individual consumers. Complying with the provisions of the Lanham Act means simply avoiding pitfalls associated with comparative advertising (Keller 135). Some of the pitfalls to evade when it comes to compliance with the Lanham Act include: embracing testimonials and endorsements, sidestep mentioning competitors unless it is factual and accurate information, and through following the policy of truth by avoiding deceptive or false advertising. Following the policy of truth means checking the slight exaggerations and boasting used in advertisements to ensure that the wording and the technicalities remain truthful. Marketing the product itself truthfully earns consumer trust. Even though under comparative advertising direct comparisons with the competition are legal, businesses must ensure that all wording and information presented is accurate and factual to avoid litigation. Moreover, consumers can also sue a business that compares its products and services incorrectly, causes confusion, and damage to consumers (Beard 150). In this case, businesses should attempt to avoid mentioning the competition completely to minimize the chances of making false claims in its advertisements. When it comes to testimonials and endorsements, a business must ensure that what the personalities say is the truth to not falsify and mislead.

      As mentioned above, noncompliance with the Lanham Act in relation to comparative advertising can result in lawsuits with repercussions such as injunctions, monetary fines, and payment of damages and injuries, either to affected businesses or consumers (Keller 131). The federal government expects each business to comply with the Lanham Act with regards to the dos and do nots of comparative advertising. For businesses using comparative advertising to market their products and services, the way to avoid the consequences of litigation would be to follow the Lanham Act and avoid the major pitfalls.

       

      Sources:

      Anten, Todd. “Self-disparaging trademarks and social change: Factoring the reappropriation of slurs into Section 2 (a) of the Lanham Act.” Colum. L. Rev. 106 (2006): 388.

      “Bernard Food Industries, Inc., Plaintiff-Appellee, v. the Dietene Company, Defendant-Appellant, 415 F.2d 1279 (7th Cir. 1969).” Justia Law, law.justia.com/cases/federal/appellate-courts/F2/415/1279/280361/.

      “Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938).” Justia Law, supreme.justia.com/cases/federal/us/304/64/.

      “Misrepresentation of One’s Own Goods as an Unfair Method of Competition in the Absence of Any Element of ‘Passing off.’” Columbia Law Review, vol. 26, no. 2, 1926, pp. 199–204

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      Beard, Fred. “Comparative Advertising Wars: An Historical Analysis of Their Causes and Consequences.” Journal of Macromarketing, vol. 30, no. 3, 2010, pp. 270-286.

      —. “Negative Comparative Advertising: When Marketers Attack.” Marketing Metaphors and Metamorphosis, 2008, pp. 146-161.

      Keller, Bruce P. “”It Keeps Going and Going and Going”: The Expansion of False Advertising Litigation under the Lanham Act.” Law and Contemporary Problems, vol. 59, no. 2, 1996, p. 131.

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      Pompeo, Paul E. “To tell the truth: comparative advertising and Lanham Act Section 43 (a).” Cath. UL Rev. 36 (1986): 565-586

      Radis, Jennifer Thurswell. “The Lanham Act’s Wonderful Complement to the FDCA: POM Wonderful v. Coca-Cola Enhances Protection Against Misleading Labeling Through Integrated Regulation.” Loy. U. Chi. LJ 47 (2015): 369.

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      Singdahlsen, J. P. “The Risk of Chill: A Cost of the Standards Governing the Regulation of False Advertising under Section 43(a) of the Lanham Act.” Virginia Law Review, vol. 77, no. 2, 1991, p. 339

       

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