An advertiser who crosses the line from creative communication to false or misleading representations can be sued for false advertising under Section 43(a) of the Lanham Act (as amended by the Trademark Law Revision Act of 1988), which explicitly prohibits false advertising.
Section 43(a) of the U.S. Trademark (Lanham) Act (as amended by the Trademark Law Revision Act of 1988) states that “any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which . . . in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person’s goods, services, or commercial activities, shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act.” Even before the passage of the 1988 amendments, false advertising claims fell within the reach of Section 43(a) of the Lanham Act. The 1988 amendments to the Lanham Act clarified that claims for false advertising can be brought as to misrepresentations about one’s own or another’s product. See Bruce P. Keller, “It Keeps Going and Going and Going”: The Expansion of False Advertising Litigation Under the Lanham Act, 59 Law & Contemp. Probs. 131 (1996) [hereinafter, Keller, It Keeps Going and Going and Going].
A plaintiff in a false advertising dispute will tender a consumer perception survey if it establishes that relevant consumers have false beliefs about a product and the challenged advertisement was the source of these false beliefs. Conversely, a defendant will submit a consumer perception survey if it proves that relevant consumers do not have erroneous beliefs about a product or, in the alternative, the erroneous beliefs were preexisting and/or derived from a source other than the challenged advertisement.
10 Standards in False Advertising Survey Design
- Survey the Relevant Universe – The proper universe for false advertising consumer perception surveys usually consists of potential purchasers (or both past and potential purchasers) of the advertised product or service.
- Ask Questions that Measure Consumer Perceptions – There is no single accepted format for false advertising consumer perception surveys in a Lanham Act case. However, they often begin with a general question about the messages or ideas conveyed by the advertisement in question, called “communication questions.” These are often followed by “comprehension questions” that dig into more detail about the consumer’s perceptions.
- Employ Controls to Determine the Source of Consumer Perceptions or Misperceptions – One method for isolating the impact of an allegedly deceptive advertisement involves assigning respondents to one of two groups: a “test group” or “control group.” Or, rather than surveying two groups of respondents, a consumer perception survey may include only one group of respondents and show all of them the challenged advertisement. After viewing the challenged advertisement, respondents are asked questions relating to the allegations in the case (the “test questions”) and a “control question” about a fictitious topic (something not in the advertisement).
- Select an Appropriate Test Stimulus – The test stimulus for a ought to be one of the contested advertisements. If plaintiffs contest an entire advertising campaign, the expert must decide how many of the disputed advertisements to test and then justify the choice of test stimuli. If more than one challenged advertisement will be tested, the survey will require multiple test groups.
- Choose a Proper Control Stimulus – Generally speaking, it is desirable to minimize the differences between the challenged advertisement and the control advertisement to the extent possible. However, the control advertisement for a survey should not make the same claims as the challenged advertisement or otherwise be deceptive.
- Use a Fitting Data Collection Method – Based on the nature of the advertising, the survey may be fielded in person, by mail or phone, and/or online. The expert needs to make a determination and justify the decision.
- Administer the Survey Consistently and in an Unbiased Manner – Surveys should measure consumer perceptions using a standardized questionnaire and employ systematic data collection methods to determine the prevalence and source of mistaken beliefs. Further, consumer perception surveys typically are “double-blind” in that neither the interviewer nor the survey respondent is informed of the sponsors or purposes of the survey.
- Properly Interpret and Quantify Responses to Open-Ended Questions – Most consumer perception surveys include one or more open-ended questions requiring respondents to articulate their impressions of a commercial in their own words (rather than by selecting from a fixed set of response categories). Before quantifying the results of open-ended questions, an expert must read, interpret, and categorize each respondent’s verbatim answers (a process known as “coding”). Experts ought to code answers to open-ended questions as consistently as possible (using the same criteria for the test and control group responses), and be able to explain the coding rules.
- Correctly Calculate the Amount of Deception Attributable to the Advertisement – Calculating a deception rate (the amount of mistaken beliefs about a product or confusion attributable to an advertisement) usually requires multiple steps. For example, if the survey includes two groups of respondents (a test group and a control group), the expert must first determine the percentage of respondents in each group who have mistaken beliefs. These percentages usually are reported for the entire sample of respondents and not the subset of respondents who indicated that the advertisement communicated something about a topic in response to a filter question. The control group percentage then is subtracted from the test group percentage. The reason for the subtraction is that any confusion in the control group could not have been caused by the challenged advertisement, because control group respondents do not view the challenged advertisement. Similarly, when an internal control is used, the results for a control question may be subtracted from the results for one or more of the test questions.
- Judiciously Describe the Survey Methods and Results – The methods used to conduct a consumer perception survey in a Lanham Act false advertising case must be readily apparent. The expert should disclose, among other things: the sponsors of the study, the purpose of the study, the exact wording and presentation of the survey questions and response categories (including interviewer instructions), the definition of the survey population (universe) and the approach used to identify and sample from this population, the data collection methods (including interviewing dates and the name of the organizations that conducted the study), the overall sample size, and the number of interviews included in each of the analyses. An expert also should provide the verbatim responses for open-ended questions and not just statistical summaries.
Adapted from: “Ten Truths of False Advertising Surveys,” D. Jay, The Trademark Reporter, 2013.
Rhonda Harper – Expert Witness
Rhonda Harper is routinely retained to formulate expert surveys, conduct rebuttal critiques, or construct rebuttal surveys to show the potential difference in results with properly designed and executed surveys.
Rhonda Harper has extensive experience and a deep understanding of survey design, sampling, question construction, data analysis, and methodological pitfalls that introduce bias or systematic error. Harper also provides guidance on how to approach the opposing expert’s deposition.
About Rhonda Harper LLC – Expert Witness
Located in Dallas, TX, Rhonda Harper has been retained by 95+ law firms since 2005. With a focus on Trademark and Trade Dress Infringement, Misleading and Deceptive Advertising, Licensing, and Commercial Reasonableness cases, Rhonda Harper has conducted hundreds of research studies, including 50+ Likelihood of Confusion and Secondary Meaning surveys. She has been deposed ~50 times and served in ~20+ trials and arbitrations.