TimeWarner, Inc., 282 F.3d 147, 152 (2d Cir. 2002). However, the requirement that a court accept the factual allegations in the complaint as true does not extend to legal conclusions. See Iqbal, 556 U.S. at 678.
III. Discussion
A. False Advertising
Under Section 43(a) of the Lanham Act, a person is liable for false advertising when the person:
- in connection with any goods or services … uses in commerce … any … false or misleading description of fact, or false or misleading representation of fact, which—
- …
- (B) in commercial advertising or promotion, misrepresents the nature, characteristics, qualities … of his or her or another person’s goods, services, or commercial activities.
15 U.S.C. § 1125(a) (1). “To state a false advertising claim under section 43(a), a plaintiff must plausibly allege ‘that the statement in the challenged advertisement is false.’” Weight Watchers Int’l, Inc. v. Noom, Inc., 403 F. Supp. 3d 361, 369 (S.D.N.Y. 2019) (quoting Merck Eprova AG v. Gnosis S.p.A., 760 F.3d 247, 255 (2d Cir. 2014)).
“A false advertising claim may be based on one of two theories.” Merck, 760 F.3d at 255 (internal quotation marks and citation omitted). “Falsity may be established by proving that (1) the advertising is literally false as a factual matter, or (2) although the advertisement is literally true,
12
