The Tenth Circuit Court of Appeals ruled on a false advertising dispute between two companies in the merchandising display industry, addressing key questions about proving injury in Lanham Act cases.

In *Kesters Merchandising Display International, Inc. v. SurfaceQuest, Inc.*, the appeals court examined whether sufficient evidence existed to support claims that one manufacturer used photographs of a competitor's product to market its own goods. The case, decided Jan. 6, 2026, stemmed from allegations that SurfaceQuest engaged in deceptive advertising practices.

Circuit Judge Bacharach, writing for the three-judge panel that included Judges Matheson and Kelly, focused on the critical issue of proving injury in false advertising cases under the Lanham Act. The court noted that "this appeal involves the use of photographs to advertise" and that "one manufacturer allegedly marketed its products with photographs of a competing product."

The legal dispute originated in 2021 when Kesters Merchandising Display International filed suit in the U.S. District Court for the District of Kansas. The original case was assigned docket number 2:21-CV-02300-EFM and proceeded through the district court before reaching the Tenth Circuit on appeal.

At the heart of the legal analysis was the requirement for plaintiffs in Lanham Act false advertising cases to demonstrate injury. As the court explained, "the plaintiff must show that the defendant caused an injury, which may be presumed or actual." This distinction between presumed and actual injury represents a crucial element in false advertising litigation.

The Tenth Circuit examined whether the evidence presented would permit a reasonable fact-finder to infer that Kesters suffered injury from SurfaceQuest's alleged use of its competitor's photographs in marketing materials. The court applied a standard that requires sufficient evidence to support an inference of harm.

In its analysis, the appeals court determined that the evidence fell short of establishing the necessary injury. Judge Bacharach wrote that the court must "answer no because injury isn't presumed and the plaintiff has not presented evidence of an actual injury." This finding proved fatal to Kesters' false advertising claims.

The decision highlights the evidentiary burden faced by companies seeking to prove false advertising under the Lanham Act. Plaintiffs must either demonstrate that injury can be presumed under the circumstances or present concrete evidence of actual harm resulting from the defendant's allegedly deceptive practices.

Representing Kesters Merchandising Display International on appeal was Teresa M. Young of Baker Sterchi Cowden & Rice in St. Louis, Missouri. She was joined by colleagues James S. Kreamer and Megan R. Stumph-Turner from the firm's Kansas City office. The legal team argued that sufficient evidence existed to support the false advertising claims.

SurfaceQuest was represented by Brian L. White of Hinkle Law Firm in Wichita, Kansas, along with attorneys J. Philip Davidson, Amy M. Decker, and Ashley N. Jarmer. The defense team successfully argued that the evidence was insufficient to establish the required injury element.

The case reflects ongoing challenges in commercial litigation involving advertising practices and intellectual property disputes. The merchandising display industry, where both companies operate, involves creating promotional materials and marketing displays for retail environments.

False advertising claims under Section 43(a) of the Lanham Act require plaintiffs to prove several elements, including that the defendant made false or misleading statements about its own or a competitor's product, that the statements were made in commercial advertising, and that the plaintiff suffered or is likely to suffer injury as a result.

The Tenth Circuit's emphasis on the injury requirement serves as a reminder to companies considering false advertising litigation that they must be prepared to present concrete evidence of harm. Courts will not simply presume injury occurred, particularly in cases involving alleged misuse of competitor photographs or similar marketing materials.

The decision also underscores the importance of developing a comprehensive evidentiary record during discovery in false advertising cases. Companies must gather documentation showing how alleged deceptive practices affected their sales, market position, or customer relationships.

For businesses in the merchandising and display industry, the ruling provides guidance on the standards courts will apply when evaluating false advertising claims. Companies should ensure their marketing materials accurately represent their own products and avoid using competitor imagery that could trigger Lanham Act liability.

The case demonstrates how intellectual property and advertising law intersect in commercial disputes between competitors. While the specific details of SurfaceQuest's alleged conduct are not fully outlined in the available opinion excerpt, the legal principles established apply broadly to similar disputes.

The Tenth Circuit's decision in *Kesters* serves as a precedent for future false advertising cases within the circuit, which covers Colorado, Kansas, New Mexico, Oklahoma, Utah, Wyoming, and portions of Montana and North Dakota. The ruling mayinfluence how district courts within the circuit evaluate injury evidence in comparable Lanham Act cases.