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Is My Competitor Using False Advertising?

false advertising.jpgOne of the more frustrating experiences for a business owner is watching a direct competitor use false or misleading advertising to sell their product or services. Their false advertising can hurt your business. Fortunately, both California law and federal law provide for a potential remedy. You can take action to protect your business from a competitor's unfair tactics. Identifying false advertising can be challenging, so it is important to understand the law. If your Bay Area business has been negatively affected by a competitor's false advertising, or you wish to learn more, please contact an experienced San Jose business litigation attorney immediately.

What Constitutes False Advertising

The Lanham Act and the California Business and Professions Code both prohibit false or deceptive advertising. While their definitions of false advertising are slightly different, there is a strong overlap. When a business makes a statement that is false or unreasonably misleading, they are in violation of the law. Further, in the California Vioxx class cases, the court ruled that if the facts used in advertising are technically true, but are presented in a manner that is likely to deceive or mislead a reasonable consumer, that advertising still qualifies as a violation of the law.

The standard is a fairly broad, but you need to be aware of the legal defenses your competitor is likely to raise. Courts have determined that an advertising statement that is 'mere puffery' is not unlawful false advertising.

Drawing the line: What Is Mere Puffery?

The case of Fraker v. KFC Corp provides an illuminating example of advertising puffery. In this case, KFC was alleged to have violated California's false advertising laws. The chain used advertising that claimed that their fast food products used "high quality ingredients" and "innovative recipes". They were sued for false advertising. However, the court ruled that KFC's claims did not violate unfair business practices law. According to the court, vague claims that talk up a product will not unlawfully mislead a reasonable consumer. Therefore, they are not false advertising.

Finding the line can be difficult, but it is important to remember the standards set by California case law. The more general and more simple a statement is, the more likely it is to be dismissed as mere puffery. That does not mean that general statements are always allowable. If a combination of statements leave a misleading impression in the mind of a reasonable consumer, then you likely have a viable false advertising claim. False advertising cases are complicated. If you believe that your business has been hurt by a competitor's deceptive advertising, it is vital that you contact an experienced unfair competition attorney immediately.

Contact an Experienced San Jose Business Litigation Attorney

Your business can be seriously damaged by a competitor's false advertising. The passionate San Jose business lawyers at Diemer, Whitman & Cardosi, LLP have decades of experience protecting the rights of California businesses. If your business has been hurt by false advertising, please do not hesitate to call us at 408-971-6270. We serve clients throughout the Bay Area, including in Santa Clara County and San Mateo County.

Sources:

http://www.leginfo.ca.gov/cgi-bin/displaycode?section=bpc&group=17001-18000&file=17500-17509

https://www.law.cornell.edu/wex/false_advertising

http://www.leagle.com/decision/In%20CACO%2020091215039/IN%20RE%20VIOXX%20CLASS%20CASES

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