False Advertising

Trademark infringement is similar to product disparagement, and is described in section 32(1) of the Lanham Act. This section states that:

anyone who shall, without the consent of the registrant—(a) use in commerce any reproduction, counterfeit, copy or colorable imitation of a registered mark in connection with the sale, offering for sale, distribution or advertising of any goods or services or in connection with which such use is likely to cause confusion, or cause mistake, or to deceive … shall be liable in a civil action by the registrant.

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A trademark is a symbol, phrase, or some other device that distinguishes ownership of a product or service. A trademark also stands as a mark of quality, which means that consumers rely on TRADEMARKS when making purchases. If one company adopts a trademark similar to a competing company, the public may think the trademark's owner either sponsored or approved the use of the trademark. Therefore, the reputation of the original holder of the trademark is compromised and consumers are deceived and confused by false advertising.

In determining whether there is a likelihood of confusion under the Lanham Act, the courts use the Polaroid test, which includes eight factors established in Polaroid Corp. v. Polara Electronics Corp., 287 F. 2d 492 (2nd Cir. 1961). They are the strength of the plaintiff's mark, similarity of uses, proximity of the products, likelihood that the prior owner will expand into the domain of the other, actual confusion, defendant's good or bad faith in using the plaintiff's mark, quality of the junior user's product, and sophistication of consumers. These eight factors do not all have to be satisfied to prove a case; the major factor the courts focus on is the potential to confuse consumers.

The Polaroid test is for cases that involve commercial exploitation. When an advertising dispute involves FIRST AMENDMENT violations, the issue at hand is often the use of PARODY.