Legal and Public Policy Implications for the Future of Comparative Advertising: A Look at U-Haul v. Jartran

Abstract

This article investigates the regulatory environment for comparative advertising in terms of industry regulation, government regulatory agencies, and private court actions under state law and the federal Lanham Act. Major legal issues are trade disparagement and defamation, trademark infringement and dilution, and deception. The Lanham Act offers protection and redress for parties injured by false, misleading or unfair comparative advertising. Legal theory for application of Lanham to comparative advertising is detailed and implications of the U-Haul vs. Jartran case, where Lanham was applied with U-Haul's being awarded more than forty million dollars in damages and legal fees, are discussed. Several public policy issues are raised including whether the FTC's private action policy serves the public interest given legal risks and costs of defending law suits.