Competitor Challenges 101—Introduction to Lanham Act, National Advertising Division, and Network Challenges

March 11, 2015 1:30pm

Ndidi A. Oriji
Senior Vice President, Advertising Standards

Chrysse Spathas
Director - Commerical Standards
ABC Inc.

Paul D. Rubin
Ropes & Gray LLP

John G. Froemming
Jones Day LLP

Aggrieved companies can seek relief from a competitor’s false or misleading advertisements in federal court via the Lanham Act, before the National Advertising Division of the Better Business Bureau (NAD), or by going to the network itself. Learn the basics of these proceedings in this exclusive session, including:

Lanham Act Litigation

  • Background on the Lanham Act
  • Discussing the basis of Lanham Act claims
    • Standing and the Lexmark case
    • Defining “false” or “misleading” advertisements
    • Delineating “sales talk” or “puffery”
    • Understanding the “commercial advertising” requirement
    • Distinguishing between “establishment” and “nonestablishment” claims
  • Marshalling evidentiary support for your claim or defense
    • Supporting or challenging establishment claims
    • Understanding the proper use of surveys
  • Identifying available remedies

Practicing before the NAD

  • Outlining the procedures for bringing and concluding an NAD challenge (e.g., pleading requirements, timeline for responses, stages of proceedings)
  • Being mindful of the NAD’s authority
    • NAD initiated investigations
    • Referral of matters to other agencies when the competitor refuses to participate
  • Identifying key differences between NAD and court resolutions

Filing a Competitive Challenge at the Network

  • Providing an overview of the challenge process at the Network
  • Highlighting unique procedural requirements
  • Discussing the relationship between the approval and challenge processes
  • Identifying differences between procedures at the NAD and the Network