ARTICLE: COMPETITOR SUITS FOR FALSE ADVERTISING UNDER SECTION 43(a) OF THE LANHAM ACT: A PUZZLE IN THE LAW OF DECEPTION. Skip over navigation
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Copyright 1992 Virginia Law Review Association.

Virginia Law Review

ARTICLE: COMPETITOR SUITS FOR FALSE ADVERTISING UNDER SECTION 43(a) OF THE LANHAM ACT: A PUZZLE IN THE LAW OF DECEPTION.

FEBRUARY, 1992

78 Va. L. Rev. 1

Author

Lillian R. BeVier *

Excerpt

Section 43(a) of the Lanham Act 1 gives competitors a federal cause of action against rivals who engage in false advertising. In the last decade and a half, section 43(a) false advertising litigation has increased steadily. Although most plaintiffs had been content to settle for injunctive relief, bounty hunters began to salivate when the United States Court of Appeals for the Ninth Circuit in 1986 affirmed a $ 40 million damage award in U-Haul's section 43(a) suit against the upstart Jartran. 2

Defendants in section 43(a) cases have been some of the country's most familiar and reputable suppliers of consumer goods and services: Bristol-Myers, 3 Johnson & Johnson, 4 American Home Products, 5 Blue Cross of Philadelphia, 6 Hertz, 7 and Ralston Purina 8 all have been accused of making false representations in advertising about their own products. The accusation of false representation, because it implies fraud and bad faith, gives rise to the impression that the issues in section 43(a) cases are morally significant and that competitors suing their rivals under section 43(a) should be lauded as avenging angels who protect consumers from being victimized by shysters and help to keep the competitive process pure. 9 A more skeptical, economically oriented analysis of the cases generates a different impression altogether. The "false advertising" with which most of the cases deal turns out not to be deliberate fraud but rather unintentional misrepresentation. Its material impact on actual consumer purchasing decisions seems wildly exaggerated. Indeed, section 43(a) ...
 
 
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