How to Avoid Pitfalls in Comparative Language

January 14, 2015 by Holiday W. Banta, Partner | Thomas A. Walsh, Partner
How to Avoid Pitfalls in Comparative Language

Ice Miller can help innovators overcome critical challenges to grow successful agribusinesses. Learn more about the unique business and legal challenges facing food and agricultural innovators and how to protect and grow that innovation in our 2015 Agribusiness Guide. An excerpt follows: 
 
The variations on comparative advertising are many, but trouble can usually be avoided by considering the following elements each time an advertisement is developed:
 
  • Is the statement factual (objective)? If so, ensuring that the facts are presented in a straightforward way will usually avoid problems. A producer must avoid deceiving or misleading the public about a fact that the public is likely to use as the basis for deciding whether or not to purchase a product.
  • If the statement is not factual (subjective), then it is usually not a problem so long as the majority of people viewing the statement understand it to be exaggeration or boasting and would not rely on the statement to make a purchasing decision.
  • Examples of such subjective opinions include “better seed than the competition” and “our milk is the best.” Care must be taken to keep the statement general. If it is capable of being proven false, it may be a problem.
Placing these recommendations in context, in order to prove the elements of a false advertising claim under federal law (the Lanham Act § 43(a)), a competitor must show that:
 
  1. Your agribusiness either made a false statement of fact in a commercial advertisement placed in interstate commerce about its own or another’s product or service or that the offending party made a representation or omission in a commercial advertisement placed in interstate commerce about its own or another’s product or service that is likely to deceive the viewer;
  2. the statement actually deceived or had the tendency to deceive a substantial (usually defined to mean more than 20 percent) segment of the viewing audience;
  3. the deception is likely to influence consumers’ purchasing decisions;
  4. and the competitor has been or is likely to be injured as a result of the false statement. Such injury can be a loss of sales, but it may also be a decrease in the goodwill enjoyed by the competitor’s trademarks.


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