THIRD EXAM:

• Which section of the Lanham Act permits business competitors to sue one another for false advertising?
   
  
• What does that section prohibit?
   
  
• What elements have courts formulated for a claim under this section?
   
  
• What must the plaintiff prove to obtain monetary damages?
   
  
• Does the section allow consumers to sue?
   
  
• Understand the categories of falsity and corresponding rules of thumb. What the differences between the categories? What are the different requirements for plaintiffs?
   
  
• How has the section been restricted in recent years by courts?

• What were the facts of the case?
   
  
• What did Clorox claim was deceptive?
   
  
• Which category of falsity did Clorox claim?
   
  
• What two factual questions must be answered in evaluating whether the ad is literally false?
   
  
• When is a claim conveyed by "necessary implication"?
   
  
• Will all messages implied by an advertisement support a finding of literal falsity by a factfinder? What determines if a message implied by an advertisement will support a finding of "literal falsity"? Which commercial claims usually cannot be characterized as literally false?
   
  
• What did the First Circuit conclude?
   
  
• Why was the claim "Whiter is not possible" not mere puffery?

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