Advertising Law Tool Kit - Tenth Edition | 2022

Venable / 87 If you are contemplating or are threatened with Lanham Act litigation, here are some things to consider: • Develop both offensive and defensive strategies. Sometimes it is important to “think like a plaintiff” and brainstorm ways to attack your competitors’ advertising claims. The best defense may be a good offense. • Identify and evaluate “implied” advertising statements. Lanham Act cases rarely turn on what is expressly stated in advertising – use surveys to identify any implied statements and determine whether substantiation exists for the implied claims. • Assemble a multidisciplinary team. Lanham Act cases typically require collaboration among marketing, science, and regulatory/legal personnel. • Engage independent experts early. Experts are needed early in the areas of consumer perception, science/substantiation, and damages. • Prepare for fast-paced litigation. Preliminary injunction hearings are “mini-trials” that proceed on an emergency basis and often occur within weeks of the start of a case. Early planning is vital. • Money damages are more common. Cases are not only about injunctions anymore – both plaintiffs and defendants should have a damages strategy from the outset of a case. • Plan for impact outside of the litigation. Competitor lawsuits over advertising campaigns can be high visibility. Consider having a media relations strategy, prepare for regulatory or other parallel proceedings, and ensure that you have contingency planning for ongoing promotional and advertising activities. For example, in the event that a court orders a modification to an advertising statement, it is good to have “Plan B” ready to roll.