12 J. Bus. & Tech. L. Proxy 1 (2017)

handle is hein.journals/jbtprxy12 and id is 1 raw text is: 







OLAMIDE OREBAMJO*


Brown v. GNC Corp.: The Fourth Circuit's New

Standard for Literal Falsity








                                  INTRODUCTION

What   does it mean  for an advertisement  to be literally false? Does the advertisement
need  to actually deceive the public or does the advertisement   have to be literally false
on  its face? Federal courts have  consistently  held that, under  the Lanham Act, to
show  that an  advertisement  is literally false, a plaintiff is not required to prove that
an  advertisement  actually  deceived  customers,  or that it was likely to do so, if the
advertisement   is literally or actually false.2 However, if it is not clear whether  the
advertising statement  is false, then the plaintiff must prove that it misled or deceived
consumers.   The  difference between   literal falsity and misleading advertisements has
been  articulated in various  false advertising claims jurisprudence.'  Nonetheless,   in






 2017 Olamide Orebamjo
   *   J.D. Candidate, University of Maryland Francis King Carey School of Law, 2017
   1.  The Lanham Act is a federal statute that grants protection for trademark and unfair competition.
   2.  See Avila v. Rubin, 84 F.3d 222, 227 (7th Cir. Ill. 1996) (The general rule is that ifa statement is literally
false, the court may grant relief without reference to the reaction of buyers or consumers of the product.); Am.
Home  Prods. Corp v. Johnson & Johnson, 577 F.2d 160 (2d. Cir. N.Y. 1978) (Deceptive advertising or
merchandising statements may be judged in various ways. If a statement is actually false, relief can be granted on
the court's own findings without reference to the reaction of the buyer or consumer of the product...); Groupe
SEB United States, Inc, v. Euro-Pro Operating LLC, 774 F.3d 192, 198 (3d. Cir. Pa. 2014) (stating that proving
literal falsity relieves the plaintiff of its burden to prove actual consumer deception.); PBM Prods. LLC v. Mead
Johnson & Co. 639 F.3d 111, 120 (4th Cir. 2011) (explaining that when an advertisement is literally false, a
violation of the Lanham Act may be established even with no evidence of consumer deception).
   3.  See Schering Corp. v. Pfizer Inc., F.3d 218, 229 (2d Cir. N.Y. 1999), Southland Sod Farms v. Stover Seed
Co., 108 F.3d 1134, 1140 (9th Cir. 1997); see also Time Warner Cable, Inc. v. DIRECTV, Inc., 497 F.3d 144, 153(2d
Cir. 2007), Tiffany (NJ) Inc. v. eBay, Inc., 600 F.3d 93, 113 (2d. Cir. 2010), Sandoz Pharmaceuticals Corp. v.
Richardson-Vicks, Inc. 902 F.2d 222, 228 (3d. Cir. 1990), Clorox Co. v. Proctor & Gamble Commer. Co., 288
F.3d 24, 33 (1st Cir. 2000), Scotts Co. v. United Indus. Corp., 315 F.3d 264, 276 (4th Cir. 2002).
   4.  See, e.g., Design Res., Inc v. Leather Indus. Of Am., 789 F.3d 495, 501 (4th Cir. 2015), Innovation
Ventures, LLC v. N.V.E. Inc., 694, F.3d 723, 735 (6th Cir. 2012), Johnson & Johnson v. GAC Int'l, Inc., 862 F.2d
975, 977 (2d. Cir. 1988), Time Warner, 497. F.3d at 153, Scotts Co., 315 F.3d at 276,


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