Bringing and Defending a Lanham Act False Advertising Claim: A Practitioner's Guide
By Casey Scott McKay ·
This guide is the operational half of the Marksy article on Section 43(a)(1)(B), and it assumes you already know the elements. It runs a false advertising matter through fourteen stages from the ninety-minute intake triage to settlement, from both chairs, using one worked example carried end to end. It supplies a claim-classification worksheet that sorts advertising copy into puffery, bald superiority, establishment claims, and factual product claims before a dollar is spent, model complaint paragraphs that survive Rule 12 and Rule 9(b), a document request set built specifically to extract a substantiation file, two survey specifications, and realistic cost-and-timeline tables for the National Advertising Division and for federal court. It explains why the self-audit comes before the demand letter and never after, why the establishment claim is worth more than any other kind, and why the Trademark Modernization Act presumption of irreparable harm does not rescue a false advertising plaintiff. The defense half sequences attacks in the order that resolves cases cheapest: puffery, then commercial advertising or promotion, then Lexmark, then Dastar, then materiality, then the merits. It closes with NAD and NARB practice, where the proof is the same but the calendar, the record, and the remedy all change.
IP and Technology > Trademarks | Guide | Published 1 July 2025 - Updated 11 April 2026 | Casey Scott McKay - marksy.us
Summary. This guide is the operational half of the Marksy article on Section 43(a)(1)(B), and it assumes you already know the elements. It runs a false advertising matter through fourteen stages from the ninety-minute intake triage to settlement, from both chairs, using one worked example carried end to end. It supplies a claim-classification worksheet that sorts advertising copy into puffery, bald superiority, establishment claims, and factual product claims before a dollar is spent, model complaint paragraphs that survive Rule 12 and Rule 9(b), a document request set built specifically to extract a substantiation file, two survey specifications, and realistic cost-and-timeline tables for the National Advertising Division and for federal court. It explains why the self-audit comes before the demand letter and never after, why the establishment claim is worth more than any other kind, and why the Trademark Modernization Act presumption of irreparable harm does not rescue a false advertising plaintiff. The defense half sequences attacks in the order that resolves cases cheapest: puffery, then commercial advertising or promotion, then Lexmark, then Dastar, then materiality, then the merits. It closes with NAD and NARB practice, where the proof is the same but the calendar, the record, and the remedy all change.
Keywords: false advertising litigation · nad challenge procedure · substantiation discovery · establishment claim discovery · deception survey specification · false advertising complaint drafting · rule 9(b) false advertising · preliminary injunction advertising · corrective advertising damages · counterclaim audit · comparative advertising demand letter · narb appeal · network clearance challenge · lanham act forum selection · false advertising defense sequence · damages expert false advertising · ad substantiation file · section 1117 profits · litigation budget advertising
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