Abstract:
Legal action challenging a company’s advertisement for containing
false or misleading statements is a more recent development in the
American legal system. The market’s utilization of advertising to
promote sales has grown steadily to the point where the frequency
with which it now permeates everyday life is almost constant.
Lawsuits challenging many of these advertisements have increased
as well. The swelling influence of advertisements in the marketplace
and the complementary rise in false advertising litigation is relevant
for both companies and consumers alike. As litigation continues to
grow as an outlet for companies to safeguard their brands,
consumers will find themselves jointly affected. This Note will
analyze a subset of this area known as false comparative advertising.
A false comparative advertisement subjects a company targeted by
that advertisement to repeated injuries in the form of damage to
reputation and loss of goodwill until its broadcast is halted. As a
result, before the underlying false advertisement claim is ever
argued, a plaintiff will first seek to preliminarily enjoin the
defendant from broadcasting the advertisement. A court’s analysis of
a motion for a preliminary injunction will involve four factors. There
is a judicially created practice that has long been recognized in this
analysis that allows a court to presume one of those factors. It
essentially permits a court to presume irreparable harm, one of the
four factors, without the plaintiff producing supporting evidence.
Naturally, it is called the presumption of irreparable harm. The
validity of the presumption is the next frontier facing courts hearing
false advertising cases. This Note will discuss the reasons why the
presumption of irreparable harm should continue to be recognized
within the realm of false comparative advertising litigation.
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