S PRODUCT X more effective than Product Y, as ABC Company claims? That is typically the key issue in Lanham Act false advertising litigation – whether the advertiser’s performance claim for its product is true or false. Not surprisingly, therefore, these cases are frequently won or lost on account of the quality of the parties’ product testing and the ability of either party to persuade the court that its testing is credible and its opponent’s is not. There are several factors that bear on the weight a court will accord a party’s tests. This article addresses three aspects of product testing that can make or break a Lanham Act case.
First, when designing a test, every effort must be made to ensure that the test protocol or methodology closely tracks how consumers actually use the products in question. For a court to accept the results of a performance test, the test generally must have been conducted under conditions that approximate real-world use.
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