context: In such a circumstance, the court will assume that the statements actually misled consumers. On the other hand, if the statements at issue are either ambiguous or true but misleading, the plaintiff must present evidence of actual deception.
citation_a.signal: see
citation_a.identifier: 960 F.2d 297, 297
citation_a.parenthetical: stating that when a "plaintiffs theory of recovery is premised upon a claim of implied falsehood, a plaintiff must demonstrate, by extrinsic evidence, that the challenged commercials tend to mislead or confuse"
citation_a.sentence: See American Council, 185 F.3d at 616; Smithkline, 960 F.2d at 297 (stating that when a “plaintiffs theory of recovery is premised upon a claim of implied falsehood, a plaintiff must demonstrate, by extrinsic evidence, that the challenged commercials tend to mislead or confuse”); Avila, 84 F.3d at 227. The plaintiff may not rely on the judge or the jury to determine, “based solely upon his or her own intuitive reaction, whether the advertisement is deceptive.” Smithkline, 960 F.2d at 297. Instead, proof of actual deception requires proof that “consumers were actually deceived by the defendant’s ambiguous or true-but-misleading statements.”
citation_b.signal: see also
citation_b.identifier: 782 F.2d 381, 386
citation_b.parenthetical: stating that the plaintiff's claim fails due to its failure to introduce evidence establishing that the public was actually deceived by the statements at issue
citation_b.sentence: American Council, 185 F.3d at 616; see also Avis Rent A Car Sys., Inc. v. Hertz Corp., 782 F.2d 381, 386 (2d Cir.1986)(stating that the plaintiff's claim fails due to its failure to introduce evidence establishing that the public was actually deceived by the statements at issue).