In a 2015 decision by the Fourth Circuit Court of Appeals, survey evidence was frequently cited in support of the lower court’s decision. The case was Design Resources, Inc. v Leather Industries of America, et al., and the issue had to do with an advertisement run by Ashley Furniture Industries that Design Resources believed was false and misleading.
Design Resources Inc. believed that the advertisement in question would be interpreted by readers of Furniture Today as referring to Design Resources and its bonded leather product. In rejecting this argument, both the District Court and the Appeals Court cited survey evidence which showed that readers of the advertisement were unable to make the required connection between the ad and Design Resources or its bonded leather product.
An advertisement can be literally false or true but misleading. Surveys in false advertising cases are rare when the statements are literally false. Surveys more generally focus on statements that are misleading or ambiguous. The question is, “What is communicated to the ordinary reader?”
In this case, the survey showed that the ordinary reader would not make the connection between the words in the ad and Design Resources or its bonded leather product. Without this connection, there can be no Lanham Act claim and the Appeals Court affirmed the lower court’s decision granting summary judgment to the defendants.