Intellectual Property Law

Chapter 23 Putting It Into Words Solution

Draft an explanation to a client why it should not use an advertisement for its “foot-long
hot dogs” that are actually only 11 inches in length.

False advertising is prohibited both by federal law (specifically, the Lanham
Act) and by various state laws. In addition, the Federal Trade Commission is
empowered to investigate claims of false advertising.

A statement may be actionable if it is literally false or if it is literally true but
nevertheless misleading. The misrepresentation must either actually deceive
or have a tendency to deceive a substantial number of consumers, and the
statement must relate to a material fact, meaning one that is likely to
influence a purchasing decision. If a competitor can then prove that it is
likely to be injured by your false statement, then it will be awarded damages
or you may be enjoined from continuing your advertisements.

In this case, you intend to advertise that your company’s hot dogs are “footlong”
when in fact they are 11 inches in length. Consumers would
understand “foot-long” to be 12 inches in length. Thus, the statement would
be literally false. It is likely that consumers would view the statement as
“material” because it would influence their decision to purchase your hot
dogs rather than a competitor’s. Thus, to use the advertisement as planned
subjects you to significant risk of an action for false advertising.

Rather than using a specific and quantifiable claim (such as “foot-long”), we
would suggest that you use more subjective and vague wording, such as “the
best hot dog you’ll eat,” or something similar. Such vague and subjective
claims of superiority are viewed as a form of protected “puffing” or mere
opinion and are not actionable.

Please let us know if we can assist you in drafting an advertisement that will
not subject you to risk of false advertising or disparagement of any
competitor, both of which are prohibited by law.