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Journal of Intellectual Property Law

Abstract

The more deceptive the claim, the safer it becomes. Recent false advertising decisions hold that a categorical marketing promise is not literally false so long as it works for someone—even if it fails for ordinary consumers in ordinary use. Under this logic, technical accuracy immunizes practical deception, and truth is measured by theoretical possibility rather than communicative meaning.

This Note argues that this “truth for some” doctrine represents a sharp break from the Lanham Act’s consumer-protection purpose. Decisions such as BPI Sports v. ThermoLife invert the doctrine of literal falsity, transforming it from the Act’s strongest safeguard into a liability shield. Advertisers may now defend sweeping claims with statistical outliers or selective evidence, while competitors who speak accurately bear the competitive cost. The result is a widening circuit split and a marketplace that rewards technical half-truths over honest competition.

To restore coherence, this Note proposes the Reasonable Consumer Truth Standard. When an advertisement conveys a single, unqualified factual message that fails in practice for ordinary consumers, it should be deemed literally false—even if it is technically accurate for atypical users or under contrived conditions. This standard does not expand liability or chill commercial speech. Instead, it restores literal falsity to its historical role, aligns the Lanham Act with the FTC’s reasonable-basis framework and common-law reliance principles, and resolves the emerging circuit conflict. In a market saturated with claims that are “technically true” yet practically misleading, the law must decide whether truth is defined by meaning—or by escape hatch. This Note argues that false advertising doctrine cannot survive a regime of truth that lies.

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