Advertising Law Tool Kit - Tenth Edition | 2022

86 / Venable Be Prepared: Lanham Act Litigation The Lanham Act is the federal statute that authorizes companies to sue competitors whenever they have suffered competitive injury caused by false or misleading statements used in “advertising or promotion.” Section 43(a) of the Lanham Act extends broadly to any “false or misleading representation of fact” that “misrepresents the nature, characteristics [or] qualities” of the advertiser’s (or another person’s) goods, services, or commercial activities. The Lanham Act applies equally to consumer- facing promotional statements and business-to-business statements. For example, emails to retailers or distributors are actionable under the Lanham Act. The only requirement is that the targeted statement be used in “commercial advertising or promotion” (i.e., those communications intended to induce a commercial transaction). Remedies for Lanham Act violations include injunctions (which can issue from a court within days or weeks of the commencement of a lawsuit), money damages, and recovery of attorneys’ fees. Injunctions can also include an order compelling the advertiser to issue corrective advertising. Lanham Act lawsuits between competitors often include claims and counterclaims. The most important event in Lanham Act litigation often is a preliminary injunction hearing, which is a very quick “mini-trial” in which the parties are able to present evidence and obtain an emergency order, either stopping or permitting challenged advertising. The decision on the preliminary injunction motion frequently leads to settlement of a case, although increasingly, competitors are proceeding to an actual trial on the merits in order to recover monetary damages. Nicholas M. DePalma nmdepalma@Venable.com +1 703.905.1455 Roger A. Colaizzi rcolaizzi@Venable.com +1 202.344.8051