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November-December, 2007 Vol. 97 No. 6 Back to TMR Main Page
 
Literal Falsity by Necessary Implication: Presuming Deception Without Evidence in Lanham Act False Advertising Cases
 
 
The doctrine of literal falsity by necessary implication has been expanding geographically and substantively. It is now recognized as valid in six courts of appeals and a growing number of district courts. The doctrine relieves plaintiffs of their burden to prove with evidence that a significant portion of a challenged advertisement’s audience has been deceived by an implied claim. Its increasing acceptance creates a growing risk for advertisers who fail to adequately analyze their proposed claims for implications that know-it-when-I-see-it judges might find, at the behest of a disgruntled competitor, to be so readily recognizable that there is no need for the aid of consumer perception surveys or other extrinsic evidence.

This article presents the history of the concept of literal falsity and its presumptions, the expansion of that concept from only explicitly-stated claims to implicit messages that judges determine are received by the audience, and the evolution to so-called “literal falsity per se” -- unsubstantiated claims that may or may not be true. In doing so, the article analyzes the key appellate and trial court cases on the subject and sets forth the criteria that they have used to determine whether a challenged claim necessarily implies a false or deceptive message.
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