Monday, September 30, 2013

Not as Easy as Advertised: New Challenges in Bringing a Successful § 43(a) False Advertising Case

Christopher Cole and Jason Crawford (Crowell) discuss Not as Easy as Advertised: New Challenges in Bringing a Successful § 43(a) False Advertising Case.

ABSTRACT: Section 43(a) of the Lanham Act historically has been an important tool for false advertising plaintiffs seeking redress through injunctive relief and money damages. While Section 43(a) remains an important cause of action, two important changes in the past decade have made obtaining relief difficult. First, in the aftermath of Twombly/Iqbal, it is harder to bring a Section 43(a) false advertising claim to trial because courts are applying a heightened “plausibility” standard that makes getting past a motion to dismiss more demanding.1 Second, the Supreme Court’s eBay and Winter decisions have made it more difficult in some circuits to obtain injunctive relief in false advertising cases because of the need to provide concrete evidence of harm, which can be difficult to do in false advertising cases.

https://lawprofessors.typepad.com/antitrustprof_blog/2013/09/christopher-cole-and-jason-crawford-crowell-discuss-not-as-easy-as-advertised-new-challenges-in-bringing-a-successful-4.html

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