SW Legal studies in Business

Injunctions Against Alleged False Ads Will Not Be Issued Unless Ads Shown to Be Literally False
Description Appeals court held that an injunction could not be issued against a company's ads, as requested by a competitor, under the Lanham Act, unless the competitor could show that the information in the ads is literally false. To show that the information may not always be true is not sufficient to force the ads to be stopped.
Topic Consumer Protection
Key Words False Advertising; Lanham Act; Injunction
C A S E   S U M M A R Y
Facts Johnson & Johnson Vision Care, a contact lens maker, sued 1-800 Contacts, a contact lens seller, claiming false advertising in violation of the Lanham Act. 1-800 claimed that consumers preferred Vision Focus Dailies by a 5 to 1 ratio over J&J's ACUVUE. 1-800 also made claims about ease of availability of lenses and other matters. The district court issued a preliminary injunction against 1-800 for making false claims under the Lanham Act. 1-800 appealed.

Reversed. To establish the likelihood of success on the merits of a false advertising claim under the Lanham Act, to obtain a preliminary injunction, the plaintiff must establish: 1) the ads of the opposing party were false or misleading; 2) the ads deceived, or had the capacity to deceive, customers; 3) the deception had a material effect on purchasing decisions; 4) the misrepresented product or service affects interstate commerce; and 5) the plaintiff has been, or is likely to be, injured as a result of the false advertising. The injunction is not justified here because the statements made by 1-800 were not shown to be literally false. J&J could not disprove statements in 1-800's advertising. The matter may be litigated, but there is not sufficient evidence to justify an injunction.

Citation Johnson & Johnson Vision Care v. 1-800 Contacts, 299 F.3d 1242 (11th Cir., 2002)

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