• ashlie major

False game advertising will only get worse

Over the past few years, there has been an increasing trend with mobile and video game creators, which is the growth and complete domination of fake game ads. If you have been on Facebook and other social media sites, you might have experience ads that promote games that are completely unrelated to the games that are actually available for download.


MDM documented some examples of these ads, most of which are complete misrepresentations of the actual game, such as “when footage of a 3D, a third-person adventure game is used to depict a 4X build-and-battle game” or “when torturous punishment scenarios are used to depict simulation home management games.”


Why do game companies do this?

There are two big reasons why most game companies get away with false advertising without being sued or receiving punishment from regulatory agencies. The first reason, explained by an expert on Quora, is because many of the companies would avoid legal liability by showing ads often show edited video content, “companies will state at some point in the trailer “Not actual gameplay”, “Alpha content, may differ from final product” or similar disclaimers.”


The second reason is that consumers aren’t speaking up. It is assumed that consumers don’t speak up because most don’t think that it is worth the time or energy to do or think that their cries won’t be heard. Also, false game advertising is now such a common practice that consumers have come to expect the misrepresentation. The Quora expert compares mobile game false advertising to other misrepresentations we, as consumers, have come to expect. “When you buy a burger at McDonald's, it won’t look like the one on the poster. When you buy a comic book, the cover is often drawn by another artist than the actual story. When you watch a movie, they already put all the best parts in the trailer and might use different sound effects, cuts, and shots than what they actually used in the movie.”


What governs false advertising?


Legal test.

Winning against a company in court is not as simple. The plaintiff has to show more than just an inconsistency with the ad and the actual game. Under Section 43(a) of the Lanham Act, a person can sue for false or misleading advertising. To prevail on a false advertising claim, “the plaintiff must show:

  • defendant made false or misleading statements as to his own products (or another’s);

  • actual deception, or at least a tendency to deceive a substantial portion of the intended audience;

  • deception is material in that it is likely to influence purchasing decisions;

  • the advertised goods travel in interstate commerce; and

  • a likelihood of injury to the plaintiff. However, the plaintiff does not have to prove actual injury.”

Lexmark Int'l v. Static Control detailed false advertising claims brought under 15 U.S.C. § 1125(a) and Section 43(a) of the Lanham Act. The U.S. Supreme Court’s ruling in Lexmark, issued in March of 2014, created a new and simpler rule for determining standing for false advertising claims. This new rule created uniformity and broadened the type parties that are allowed to make false advertising claims. As National Law Review notes, this new ruling potentially increases the liability of businesses that conduct business within the United States.


Under this new rule, in order to have standing for a false advertising claim, a plaintiff must have alleged “an injury to a commercial interest in sales or business reputation proximately caused by the defendant's misrepresentations.” This ruling expands the type of plaintiff that may bring suit to include indirect competitors.


Federal.


The Federal Trade Commission Act

Congress gave the Federal Trade Commission (FTC) the power to enforce the appropriate law, which says:

  • an ad must be truthful and not deceptive—that is, not fool consumers

  • advertisers must have proof for anything they claim in an ad; and

  • ads can’t be unfair.

Section 5 of The Federal Trade Commission Act, states that “unfair or deceptive acts or practices in or affecting commerce” are unlawful. The FTC also has rules that regulate advertising in specific types of industries. Gibbs Law Group best explains how this works. “For example, funeral homes are required to give a “general price list” whenever a consumer asks about funeral arrangements, according to the FTC. Or the FTC’s Endorsement Guide lets prohibit endorsers, such as Instagram or YouTube stars, from talking about their experience with a product if they haven’t actually tried it.”


The Food and Drug Administration

Though not applicable here, another federal regulation that governs advertising laws is The Food and Drug Administration (FDA). The FDA has authority under the Federal Food, Drug, and Cosmetic Act to regulate the advertising and labeling of pharmaceutical, food, and cosmetic products. Gibbs Law Group gives an example of the FDA’s regulatory power. “The FDA has specific rules about what information needs to be placed in the “nutrition facts” of food labels, and about what types of medication side effects need to be disclosed in drug advertisements.”


More information about FTC’s advertising laws can be found here.


The Lanham Act

The Lanham Act, though a trademark statute, also addresses unfair competition and false and misleading advertising or labeling. The Lanham Act states that “Any person who, on or in connection with any goods or services. . . in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person’s goods, services, or commercial activities, shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act.”


Fed up? Here’s how to fight back.

  1. Sign the petition. You’re not the only one that has had it with false game advertisements. You can now join thousands of others and sign a petition targeted to Apple, Samsung, Google, and Facebook. You can find the petition here on the change.org platform.

  2. Sue the video game company. If you have the resources and you’re looking to cause a disruption, you may want to contact a lawyer and see whether you have standing to sue a video game company guilty of false advertising.

  3. Report, report, report. The FTC takes false advertising claims seriously and gives consumers and businesses the ability to report false or misleading advertisements. Here’s how to contact the FTC. This information was taken directly from their website.

“The FTC has primary responsibility for determining whether specific advertising is false or misleading, and for taking action against the sponsors of such material. You can file a complaint with the FTC online or call toll-free 1-877-FTC-HELP (1-877-382-4357).”

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