Third Circuit Irons Out "Powerful" Performance False Advertising Dispute

The Third Circuit has rendered a notable decision with important implications for the use of fine print in advertising. The Court held that small print statements that explicitly define the terms of a more prominent superior performance claim can render that performance claim unambiguous – and thus subject to a literal falsity claim – even if consumers are unlikely to read the small print and even if there is survey evidence indicating that consumers consider the overall performance claim ambiguous.

This decision is also noteworthy for its discussion of the evidence required to prove "irreparable harm" in the wake of Ferring – another Third Circuit opinion covered on this blog – which rejected the presumption of irreparable harm for injunctive relief under the Lanham Act.