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False Advertising - Chapter 5 - Texas Intellectual Property Law Handbook - Second Edition

Author: Herbert J. Hammond
Page Count: 24
Published: March 2011
Media Desc: PDF from "Texas Intellectual Property Law Handbook - 2nd Edition"
File Size: 223 KB

Originally from:

Texas Intellectual Property Law Handbook - Second Edition - Hardcover

Texas Intellectual Property Law Handbook - Second Edition - Digital

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§ 5.01 Introduction
This chapter discusses liability for false and misleading advertising
that deceives or misleads consumers about the nature, qualities, or
character of a merchant’s goods or services or those of a competitor.
The common law in most states did not recognize a cause of action for
false advertising except when a merchant attempted to palm off its
goods or services as those of a competitor’s. A leading case, American
Washboard Co. v. Saginaw Mfg.,1 decided in 1900, held that a
washboard manufacturer did not have a common-law cause of action
for unfair competition against a competitor who advertised and labeled
its zinc washboards as made of “aluminum.”2 This case was largely
followed in the early twentieth century.
In 1946, however, Congress passed the Federal Trademark Act
(Lanham Act),3 with a notable provision in § 43(a).4 Section 43(a)’s
possibilities as a basis for a federal statutory tort for unfair competition
was not initially recognized until 1954, when the Third Circuit, in
L’Aiglon Apparel, Inc. v. Lana Lobell, Inc.,5 held that § 43(a) provided
a federal cause of action for false advertising where one company used
a photograph of a competitor’s product in an advertisement of its own.6
In 1971, in Alum-A-Fold Shutter Corp. v. Folding Shutter Corp.,7 the
Fifth Circuit followed the Third Circuit’s lead, holding that § 43(a)
created a federal cause of action for false representations and
descriptions used by a merchant in connection with the sale of its own
goods or services in interstate commerce.8
Ten years later, the Fifth Circuit, in Chevron Chemical Co. v.
Voluntary Purchasing Groups, Inc., thoroughly analyzed § 43(a),
including the language relating to false representations.9 Recognizing
that § 43(a) creates a federal cause of action for false advertising where


Table of Contents


§ 5.01 Introduction
§ 5.02 False Advertising under the Lanham Act
[1] -- Lanham Act § 43(a)(1)(B)
[a] --Elements of a False Advertising Claim
Brought under § 43(a)(1)(B)
[2] -- Lanham Act § 43(a)(1)(A)
[3] -- Standing
[4] -- Specific Conduct Found Actionable
[5] -- Remedies
[a] -- Equitable Relief
[b] -- Damages
[c] -- Attorney's Fees
[6] -- Defenses
[a] -- Puffery
[b] -- Truth
[c] -- Statute of Limitations
§ 5.03 False Advertising under Texas Law
[1] -- Texas Common Law
[2] -- Business Disparagement
[3] -- Texas Deceptive Trade Practices Act
[4] -- Criminal Liability
[5] -- Injury to Business Reputation
§ 5.04 Sources
[1] -- Statutes
[2] -- Treatises and Texts


Author Detail

Herbert J. Hammond is a partner with Thompson & Knight, L. L. P. in Dallas, Texas, where he specializes in patent, trademark, copyright, trade-secret, and computer - law litigation and acts as an arbitrator, mediator, and expert witness in intellectual-property disputes.

Mr. Hammond graduated from New York University School of Law in 1976 and is licensed to practice in Texas and in the United States Patent and Trademark Office. He has been recognized by Chambers USA's Leading Lawyers for Business for his deep knowledge of IP law and as an outstanding lawyer, by Woodward/White as among the Best Lawyers in America in intellectual property, by Texas Monthly's listing of Texas Super Lawyers in Intellectual Property Litigation, and by D Magazine's Best Lawyers in Dallas. He is a frequent speaker at CLE programs and has written many chapters and articles on intellectual-property topics.


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