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.

The Intersection of Antitrust and Advertising

Bruce Colbath, Nadezhda Nikonova, Jul 29, 2014

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)

Christopher Cole, Jul 29, 2014

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)

Edward Schwartz, Jul 28, 2014

“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)

Deven Desai, Spencer Weber Waller, Jul 29, 2014

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)

Davit Akman, Brian Fraser, Christopher Oates, Brenda Pritchard, Jul 29, 2014

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)

Andrew Matthews, Gus Stewart, Jul 29, 2014

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)