In this issue:
Antitrust and advertising can be surprisingly intertwined, but the relationship doesn’t receive much attention. This issue addresses that problem. First we look at false advertising—both federal and state courts in the U.S. have issued contradictory rulings as to whether it’s illegal under antitrust laws as well as the Lanham Act. We question whether antitrust turns a blind eye to brands, and also dig into a new Canadian anti-spam law that has global implications. We finish with a case study, New Zealand, discussing the issues that arise when—as is also true in Canada—the same authorities are assigned responsibility for both competition and deceptive marketing practices. And many thanks to Steve Szentesi for his help in putting this issue together.
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The Intersection of Antitrust and Advertising
False Advertising and Antitrust Law: Sometimes the Twain Should Meet
Although it is easier to bring a false advertising claim under the Lanham Act than under the Sherman Act, the Lanham Act’s available remedies are not as robust. Bruce Colbath & Nadezhda Nikonova (Sheppard Mullin)
Can False Advertising Give Rise to Antitrust Liability?
With the Retractable Technologies case, is the theory that false advertising can give rise to violations of the Sherman Act, while rarely invoked, gaining traction? Christopher A. Cole (Crowell & Moring)
“Oh, You Did Not Say That!”: Liability for False or Misleading Statements Under the Sherman and Lanham Acts
The Lexmark and Pom Wonderful cases will undoubtedly cause more companies to seek judicial protection from the marketing slings and arrows of their competitors and others. Edward B. Schwartz (Steptoe & Johnson)
The Competitive Significance Of Brands
Antitrust regulators have begun to ask explicit questions in both guidelines and cases about the role branding plays in the competition space. Deven R. Desai (Georgia Institute of Technology) & Spencer W. Waller (Loyola Univ. Chicago School of Law)
Legitimate Businesses Should Be At Least As Concerned As Fraudsters About the Competition Act-Related Amendments Under Canada’s New Anti-Spam Legislation
The potential chilling effect on businesses wishing to engage in legitimate (but aggressive or innovative) marketing activities through email and other electronic messages is likely to be aggravated by the severe consequences of non-compliance. Davit Akman, Brenda Pritchard, Brian Fraser, & Christopher Oates (Gowlings)
The Intersection of Advertising and Antitrust in New Zealand
The enforcement fusion of (some) advertising and antitrust law, coupled with other advertising law, provide a powerful toolkit for New Zealand’s regulator and competitors alike. Andrew Matthews & Gus Stewart (Matthews Law)
