The National Advertising Division has referred advertising claims made by Kramer Laboratories, Inc. (challenged by a competitor) to the Federal Trade Commission and Food and Drug Administration for further review after the company said it would not comply with NAD's recommendation to change the name The Original Fungi-Nail Toe & Foot Brand product.
NAD does not generally require an advertiser to change the name of a product simply because a challenger suspects that it may be misleading and absent extrinsic evidence of consumer confusion. However, NAD found that a product name change can be required if the product name itself conveys a message that is false or misleading, as here, about product performance.
Lessons from this case: even longstanding product names are not immune from scrutiny by NAD and refusal to accept NAD's recommendations will land an advertiser in front of regulators.
The key issue before NAD was whether the “Fungi-Nail Toe & Foot” product name conveyed a misleading message to consumers. The challenger argued that the name reasonably communicates the message that the product effectively treats toenail fungus.
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