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Legal Presumptions of Consumer Confusion and Injury in Lanham Act Cases

By Bruce Colbath
November 30, 2014

On July 29, the United States Court of Appeals for the Second Circuit “clarified certain aspects of [its] false advertising jurisprudence” and held that, where literal falsity and deliberate deception have been proved in a market with only two players, it is appropriate to use legal presumptions of consumer confusion and injury for the purposes of finding liability in a false advertising case brought under the Lanham Act. Merck Eprova AG v. Gnosis S.p.A., No. 12-4218 (2d Cir. July 29, 2014).

Background

The nutritional ingredient involved in this litigation is a dietary ingredient called folate, a B vitamin that helps the body make new cells. Folate is considered to be a critical supplement for prenatal health, and low folate intake is associated with various vascular, ocular neurological and skeletal disorders, and may pose a serious risk to individuals with diabetes.

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