Pollard PLLC is a litigation boutique focused on competition law. The firm and its attorneys have extensive experience litigating a variety of unfair competition matters, including various trademark claims and other claims under the Lanham Act.
The firm prosecutes and defends against claims for Lanham Act violations, including trademark infringement, trade dress infringement, trademark dilution, false advertising, and cybersquatting.
The firm has a mission: fight unfair competition. When a company advertises falsely or deceptively, this mission is implicated. False and deceptive advertisements affect everyone in the marketplace: consumers are cheated, competitors are disadvantaged, and the system itself is damaged. As a competition law firm, Pollard PLLC is uniquely positioned to combat false advertising in its many forms.
The Federal Trade Commission and Lanham Acts
Beginning with the Federal Trade Commission Act of 1914, companies have long been charged with maintaining honest and responsible advertising strategies. Originally, though, it was only the Federal Trade Commission (“FTC”) that could enforce this duty.
Although famous for its impact on trademark infringement, the Lanham Act prohibits false and deceptive advertising and creates a cause of action for the public against dishonest companies.
To succeed on a claim for false advertising under the Lanham Act, a plaintiff must show:
- The advertisement was false or misleading;
- The advertisement deceived, or was capable of deceiving, consumers;
- The deception materially affected purchasing decisions;
- The misrepresented product or service affects interstate commerce; and
- The deception injured, or is likely to injure, the plaintiff.
Having litigated numerous intellectual property claims, Pollard PLLC is intimately familiar with the Lanham Act’s requirements and procedures. The firm adeptly uses that familiarity to best solve our clients’ complex problems.
Federal courts confer standing upon false advertising litigants broadly; a plaintiff must only:
- Assert an injury to a commercial interest in reputation or sales and
- Show that its injury was proximately caused by the deceptive advertisement.
Such an inclusive test for standing encompasses a variety of market participants. This enables the firm to represent market competitors whose rivals have depicted products or services in false or deceptive ways, consumers who have been misled by unfair advertising strategies, and companies that are accused of false or deceptive advertising.
False advertising takes various forms. Advertisements can be outright false or merely misleading and companies have developed different strategies for stretching and bending the truth to avoid litigation. The following are examples of how companies advertise in false or deceptive ways:
- Omission of Information: Companies brush past, skim over, or wholly omit important information and thereby mislead consumers; by failing to include certain information about a product, service, or price, companies can attain an unfair competitive advantage.
- Bait-and-Switch Tactics: Companies deceive consumers when advertising a product or service at a certain, appealing price and then offering only a very limited amount at that price. This tactic unfairly brings customers to the place of business, thereby driving sales.
- Manipulation of Terms: Companies use terms with imprecise meanings deceptively by relying on their customers’ natural associations with words such as “organic,” “light,” “natural,” “recyclable,” “environmentally-friendly,” among many others.
- Unfair Comparisons: Companies deceptively claim that their products are “better,” but neglect to explain what the product is better than or how the product is better. Alternatively, companies compare their own sale prices to their competitors’ retail prices to mislead their customers.
A company that deceives its own or its competitors’ customers in any of the above or other ways violates the Lanham Act. A violating company’s customers and competitors, either direct or indirect, all have a cause of action against the violator and can recover for their commercial injuries and prevent further deceptive behavior.
The Lanham Act provides multiple remedial options for plaintiffs damaged by false advertisements. Among these options are both injunctive and monetary relief:
- Preliminary and permanent injunctions;
- Corrective advertising;
- Plaintiff’s damages;
- Defendant’s profits;
- Costs of litigation;
- Attorneys’ fees.
Pollard PLLC uses its understanding of Lanham Act proceedings to tailor our litigation strategies to attain whichever remedy best satisfies our clients’ needs, whether legal or equitable.
Administrative Proceedings—The Advertising Self-Regulatory Council
Pollard PLLC recognizes that formal litigation is not the right strategy for every client and, evaluating each client’s needs on a case by case basis, the firm resolves our clients’ problems through the available administrative procedures when they provide the best road to success.
The Advertising Self-Regulatory Council (“ASRC”) is the advertising industry’s self-regulatory body that handles false advertising claims out of court. The ASRC arranged investigative, dispute resolution, enforcement, and appellate divisions to allow the industry to police itself.
The National Advertising Division (“NAD”), which is the ASRC’s dispute resolution division, presents parties with an out-of-court option to resolve disputes over false or deceptive advertisements. The ASRC’s regulatory functions extend to the appellate level as well with the National Advertising Review Board (“NARB”), where experts from the private, public, and academic sectors are called to create a five-person panel to review the NAD’s decisions.
Pollard PLLC relies on its intellectual property litigation, arbitration, and mediation experience to navigate our clients through the ASRC’s dispute resolution proceedings from the NAD through the NARB, if necessary. Our comfort in administrative proceedings provides our clients with another form of recourse, thereby enabling us to further tailor our problem-solving strategy.
Pollard PLLC has litigated numerous complex Lanham Act claims, including:
ESP Systems, LLC v. Nightingale Nurses, LLC, Case No. 16-81263 (Southern District of Florida, 2017) (prosecuting Lanham Act claims for false advertising in the medical staffing industry)
Racing Sports Concepts, LLC v. Dickinson et al., Case No. 13-20428 (Southern District of Florida, 2013) (prosecuting Lanham Act claims for false advertising and trademark infringement in the aftermarket auto parts industry)
In the News, Inc. v. Controneo, Case No. 15-CA-009602 (Florida’s Thirteenth Judicial Circuit – Hillsborough County, 2016) (defending against Cybersquatting claims in litigation between rival media companies)