Don’t Count on False Advertising Law to Protect Your Innovation

Let’s say your business is the first to launch an innovative product, and you achieve great sales success. And you inspire a knockoff: a competitor later begins selling practically the same thing but claims in its advertising that its product is “innovative” or the “first of its kind.”

You worry that this will hurt your sales – that customers might instead buy the competing product, thinking there is no similar product on the market or doubting whether your product was as innovative as you claimed. Do you have a false advertising claim against your competitor?

This situation came up in a recent Ninth Circuit case. In 2018, a company named Vericool released what appeared to be the first biodegradable cooler, which it called the “Ohana.” In 2019, major cooler manufacturer Igloo launched a competing biodegradable cooler, which it called the “Recool.” Igloo marketed the Recool as “the world’s first eco-sensitive cooler, made from 100% biodegradable materials.”

Vericool sued Igloo for false advertising under the federal Lanham Act. The trial court dismissed this claim, and the Ninth Circuit affirmed that ruling earlier this month in a 2-1 decision.

The Ninth Circuit held that you can’t make a false advertising claim against a competitor over the origin of an idea embedded in the product or service. Instead, to be viable, a false advertising claim must be over an “observable aspect” of the product or service rather than “ideas” the goods “embody or contain.”

Thus, you can’t use a false advertising claim to go after your competitor for advertising untruthfully that it was first to market.

The logic behind this ruling is to maintain proper boundaries between, on one hand, false advertising law and, on the other hand, patent and copyright law.

Patents protect new inventions, such as a new kind of machine. Copyrights protect original expressive works, such as books. Here, the court held it would impinge upon the domain of patent law to allow a false advertising claim over what is essentially a claim of being the first to invent a product.

This was not the first case of its kind. Courts have rejected other types of false advertising claims on the basis that they impinge upon patent or copyright law. For example, courts have rejected claims concerning:
• Advertising that products are fully licensed by relevant third-party IP holders.
• Advertising using the copyrighted property of others without permission or using unauthorized modifications to copyrighted material.
• Publication credits identifying the wrong author, architect, photographer, creator, or producer, or omitting a contributor.
• Selling a public-domain creative work without crediting the original author.

Courts also have rejected false advertising claims concerning using someone else’s trademark or trade dress without permission. To reach that conduct, you must establish the elements of trademark or trade dress infringement, which requires a different kind of proof and may be hard to do.

In addition, there are other areas where a false advertising claim is likely to fail, such as:
• Advertising claiming that a competitor misappropriated someone’s trade secrets.
• Advertising claiming original authorship or copyright ownership over something, such as software, engineering drawings, or architectural designs.

Does the Vericool case mean you can falsely advertise your product or service as the first of its kind with impunity? That’s risky.

Such advertising might create confusion in the marketplace about who is actually making a product (the first producer or the second) or whether the first product actually had the advertised characteristics, such as whether the Ohana cooler was actually biodegradable. Such confusion could create the basis for a meritorious lawsuit.

In addition, this was a 2-1 appellate court decision. The dissent made good points. The Supreme Court could reverse the decision, and other circuit courts might rule differently.

Finally, what can your business do if it’s concerned about possibly becoming the victim of dishonest advertising in a situation where a false advertising claim can’t reach the conduct because of these limitations?

Most importantly, get patents and copyright registrations when you can. Don’t delay. With patents, engaging in certain acts can kill your ability to get a patent. With copyrights, to have a powerful remedy, you should register your copyright as soon as you first publish the work, such as a song.

Also, as mentioned above, if your competitor’s advertisement is not just false but also creates or is likely to create consumer confusion, you may have another kind of legal claim.

Putting your business in a good position here requires many of the same practices that create success in other areas: proactively protect your property (including your intellectual property), and put systems in place to watch for any violations (infringements) of your property rights.

Written on May 21, 2026

by John B. Farmer

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