Trademarks as a Media for False Advertising

40 Pages Posted: 6 Mar 2009 Last revised: 30 Jan 2010

See all articles by J. Shahar Dillbary

J. Shahar Dillbary

George Mason University - Antonin Scalia Law School

Date Written: March 1, 2009


This Article explores an unnoticed aspect of trademark law which in some instances may constitute a license to cheat. It shows that under certain circumstances a seller can use its own trademark to mislead its customers, free from legal sanction, in contexts where the same behavior would be sanctioned if the seller used other advertising media. The Article then explores how an alternate conception of the economic function of trademarks can be used to understand the informational value of trademarks and their advertising function. After identifying circumstances appropriate for legal intervention, the Article concludes with a proposal for a new interpretation of the false advertising provision in the Lanham Act to eliminate this disparity.

Keywords: Fraud, False Advertising, Trademark Fraud, Fanciful Marks, Error Costs, Regulation of Information, Economic Analysis, Brands

Suggested Citation

Dillbary, J. Shahar, Trademarks as a Media for False Advertising (March 1, 2009). U of Alabama Public Law Research Paper No. 1351862, Cardozo Law Review, Vol. 31, No. 327, 2009, Available at SSRN: or

J. Shahar Dillbary (Contact Author)

George Mason University - Antonin Scalia Law School ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States

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