Internet False and Misleading Advertising Laws – Part II

The federal Lanham Act (“Lanham Act”) allows civil actions for false advertising that misrepresents the nature, characteristics, qualities, or geographic origin of goods or services. See 15 U.S.C. § 1125(a) stating in relevant part as follows:

(1) Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which: (A) Is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person, or (B) In commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person’s goods, services, or commercial activities, shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act.

(2) As used in this subsection, the term “any person” includes any State, instrumentality of a State or employee of a State or instrumentality of a State acting in his or her official capacity. Any State, and any such instrumentality, officer, or employee, shall be subject to the provisions of this chapter in the same manner and to the same extent as any nongovernmental entity.

(3) In a civil action for trade dress infringement under this chapter for trade dress not registered on the principal register, the person who asserts trade dress protection has the burden of proving that the matter sought to be protected is not functional.

The Federal Trade Commission (“FTC”) also prosecutes false advertising laws on behalf of consumers. So, any information that is sent by a seller or manufacturer is considered an advertisement. The information includes television advertisements, newspapers, radio and magazines. Also, if a company’s salesperson tells you something to promote the sale, then that information is also considered an advertisement.

A false advertisement is untruthful and misleading information that is provided by the seller to promote the sale of goods or services. It is always recommended to be honest when advertising goods or services to the public. For example, if the advertiser engages in bait and switch tactics, it could be actionable. If the advertiser fails to provide fair advertising – i.e., does not disclose necessary information adequately and conspicuously – it may be actionable. So, in other words, the Federal Trade Commission may prosecute a company if it determines it has engaged in unfair or deceptive practices. In fact, online disclosures listed on a website must be clearly visible to consumers. The website links should be obvious, clearly labeled, and easy to use. It is recommended to use bold fonts to ensure disclosures stand out from regular texts.

The unauthorized usage of a third-party’s trademark within metatags is considered as trademark infringement. Metatags and hidden texts are information that can be injected into a website’s program or wallpaper’s background. This information can be extracted by search engines and are not visible to the website visitor. The courts have said using someone else’s trademark without authorization is like driving website traffic by luring a consumer to the wrong exit by posting a false road sign. Hence, if there is evidence of a likelihood of confusion, then the plaintiff will probably succeed on trademark infringement.

Our law firm manages legal actions related to internet false and misleading advertising in state and federal courts. We are ready to assist our clients in matters related to online marketing and advertising rules and regulations. Please contact our law firm to speak with an internet attorney at your earliest convenience.