survey isn't evidence of actual deception, court says in First Amendment case w/TM relevance

Express Oil Change, L.L.C v. Mississippi Board of Licensure for Professional Engineers & Surveyors, No. 18-60144 (5th Cir. Feb. 19, 2019) Just as a matter of client advocacy, it is time for these First Amendment cases about the government’s near-inability to regulate based on the meaning of words to start being cited in run-of-the-mill trademark and false advertising cases.  I don’t think the results will be good policy, but at the very least we will see whether courts mean what they say, or instead mean “legislative and administrative entities shouldn’t get to regulate but it’s ok when private parties sue under the same theories.”  In particular, where trademark and false advertising treat “false and misleading” as the regulable category (albeit with different standards of proof for “misleadingness” in §43(a)(1)(B) cases than for falsity), First Amendment commercial speech law has for decades made a…

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