West Case Update

False Advertising Claim Under Lanham Act Must Proceed

Description An Appeals court ruled that Clorox had provided sufficient evidence that a competitor may have engaged in false advertising under the Lanham Act for the case to proceed to trial. The competitor had claimed that "whiter is not possible" if its detergent was used. If the claim can be shown to be false and to mislead consumers, Clorox could prevail.

Topic Consumer Protection

Key Words Lanham Act; False Advertising

C A S E S U M M A R Y

Facts Proctor and Gamble sold a detergent, Ace con Blanqueador, in Puerto Rico. It advertised that "Mas blanco no se puede" (Whiter is not possible). Clorox, a bleach maker, sued Procter and Gamble, contending that the ad was false and misleading in violation of the Lanham Act. The district court dismissed the suit; Clorox appealed.

Decision Dismissal vacated; remanded for further proceedings. To recover on a false advertising claim under the Lanham Act, the plaintiff must show: 1) that the defendant made false or misleading descriptions of fact or representation of fact in commercial advertisements about its product; 2) that this statement actually deceived or had a tendency to deceive a substantial segment of its audience; 3) that this deception was material, in that it is likely to influence purchasing decisions; 4) that the defendant placed this false or misleading statement in interstate commerce; and 5) that plaintiff was, or is likely to be, injured as a result of false or misleading statements, either by direct diversion of sales from itself to defendant or by lessening of goodwill associated with its products. Clorox has shown enough to bring a claim under this Act and so the suit should not have been dismissed without giving the company an opportunity to argue the validity of its claims.

Citation Clorox Company Puerto Rico v. Proctor & Gamble Commercial Co., 228 F.3d 24 (1st Cir., 2000)

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False Advertising Claim Under Lanham Act Must Proceed
Description	An Appeals court ruled that Clorox had provided sufficient evidence that a competitor may have engaged in false advertising under the Lanham Act for the case to proceed to trial. The competitor had claimed that "whiter is not possible" if its detergent was used. If the claim can be shown to be false and to mislead consumers, Clorox could prevail.
Topic	Consumer Protection
Key Words	Lanham Act; False Advertising
C A S E S U M M A R Y
Facts	Proctor and Gamble sold a detergent, Ace con Blanqueador, in Puerto Rico. It advertised that "Mas blanco no se puede" (Whiter is not possible). Clorox, a bleach maker, sued Procter and Gamble, contending that the ad was false and misleading in violation of the Lanham Act. The district court dismissed the suit; Clorox appealed.
Decision	Dismissal vacated; remanded for further proceedings. To recover on a false advertising claim under the Lanham Act, the plaintiff must show: 1) that the defendant made false or misleading descriptions of fact or representation of fact in commercial advertisements about its product; 2) that this statement actually deceived or had a tendency to deceive a substantial segment of its audience; 3) that this deception was material, in that it is likely to influence purchasing decisions; 4) that the defendant placed this false or misleading statement in interstate commerce; and 5) that plaintiff was, or is likely to be, injured as a result of false or misleading statements, either by direct diversion of sales from itself to defendant or by lessening of goodwill associated with its products. Clorox has shown enough to bring a claim under this Act and so the suit should not have been dismissed without giving the company an opportunity to argue the validity of its claims.
Citation	Clorox Company Puerto Rico v. Proctor & Gamble Commercial Co., 228 F.3d 24 (1st Cir., 2000)