17
Oct/09

Verizon v AT&T re Best 3G Network


Action for declaratory judgment that Verizon Wireless’s advertising claims of having “America’s Most Reliable 3G Network.”
Complaint Best 3g Network



8
Aug/09

Text of Decision in GATORADE v POWERADE: Not Completely False


gatorade incomplete.jpg
Coke’s POWERADE brand sports drink was contemplating how to take market share from segment leader Pepsi’s GATORADE product. It decided to tout the addition of calcium, magnesium and potassium. It ran a campaign describing these minerals as ‘critical’, describing POWERADE as ‘complete,’ describing GATORADE as ‘incomplete’ alongside a depiction of half a GATORADE bottle (pictured above is the cover of ESPN magazine containing a fold-out ad – the cover says ‘you wouldn’t settle for an incomplete cover’ and then folding out to contain the POWERADE ‘incomplete’ ad).
Interestingly, Pepsi had intended to pursue a similar strategy, but ran into a problem sourcing sufficient calcium. It then removed references on its website to calcium as being beneficial. (Ed Note: I would be interested if anyone has scoop on why the worldwide calcium shortage affected Pepsi but not Coke).
So Pepsi sues in the ‘complete vs incomplete’ claims, the ‘critical’ claims, use of the slogan ‘UPGRADE YOUR FORMULA, UPGRADE YOUR GAME,’ and the half a bottle depiction.
The campaign began in late March, Pepsi sued on April 13, Coke pulled some of the ads in late May (after the campaign ran its intended 60 days). Pulling the ads mooted some of the claims, including the half a bottle one, which is too bad from my point of view, because I’m interested in post-Federal Dilution Act analyses of ‘scared john deere’ type claims.
The SDNY rejects’ Pepsi’s motion for preliminary injunction on straight-forward grounds. “Complete’ and ‘critical’ are the sort of vague types of puffery that we expose ourselves too all the time. The Court notkes that Coke was sophomoric and boorish, but not deceptive. As for ‘UPGRADE YORU GAME;’ the Court notes:

No reasonable consumer, having read the slogan, would be justified in believing that it would actually result in improved athletic abilities such as playing a better game of basketball.

Ha! Take a look at who Pepsi and Coke pay to endorse the product. Look at the ads. Spend time with thirteen year old boys. These products thrive on unreasonable consumers relying on unjustified beliefs.
Beverage industry commentary here.
Duets Blog commentary here.
43(B)log commentary here.
Decision Stokely



2
Jun/09

Restraint of Trade in Market for Warhol Works


43(B)log: “Doubled Denied, denied in part“:

Simon-Whelan v. Andy Warhol Foundation for the Visual Arts, Inc., 2009 WL 1457177 (S.D.N.Y.)
Simon-Whelan, as putative class representative for art buyers, alleged that the Foundation and various defendants violated state and federal antitrust laws by conspiring to restrain and monopolize trade in the market for Warhol works. He also alleged individual unjust enrichment, Lanham Act, and fraud claims. The Lanham Act claim was based on the defendants’ denial of the authenticity of a work he owned, and the fraud claim was based on allegations that he was fraudulently induced to submit his artwork to the defendants’ authentication board and sign a convenant not to sue in connection with such submissions.



2
May/09

FedEx Disputes With UPS As To Who Is Reliable


TradingMarkets.com: “FedEx lawsuit alleges UPS ‘most reliable’ ad is false



15
Apr/09

6 Hour Energy Shot v 5 Hour Energy Shot


43(B)log: “5 Hour Power struck unfair blow against alleged infringer 6 hour.” Interesting fact pattern. Defendant received injunction against one competitor using a certain term, and issued a press release that falsely suggested that it had received a court order against all competitors using that term, subjecting plaintiff to lost sales.



10
Oct/08

NY State Sues Arbitron Over Portable People Meter


Reuters: “NY State Sues Arbitron Over Portable People Meter
as does the New Jersey attorney general.
UPDATE: Arbitron sues New Jersey.



29
Aug/08

UK iPhone Ad Banned for False Advertising


SlashDot: “iPhone Web Claims Draw Governmental Rebuke in UK“:
“Apple has been running an iPhone ad saying ‘all parts of the internet are on the iPhone’, but it had to be withdrawn after Britain’s Advertising Standards Authority ruled that it gave ‘a misleading impression of the internet capabilities of the iPhone’ because the iPhone cannot access Flash or Java – features that are essential to some websites. This raises an interesting issue of where do you draw the line between essential and non-essential features of websites. What should the web look like? Should government authorities be the ones making that decision?”



29
Aug/08

Cash vs Credit Prices on Gas Station Signage


Newsday: Gas Station owners say Cuomo’s charges are wrong:

Particularly grating on the retailers was the statement in Cuomo’s news releases saying the stations “engaged in false advertising by only listing the lower cash prices on their street view signage in order to lure patrons to the pump.” A story last week about the Long Island investigation said “both prices – one for cash and one for credit card payment – must be listed on all signs.”
Yesterday, both Beyer and Cohen said that’s inaccurate. State law allows retailers, if they wish, to post only the lower cash price on their large signs near the street as long as they make clear on the sign that the price is only for cash purchases and that signs on the pumps list both cash and credit prices.



2
Aug/08

Warning: $2000 Fine, 5 Years Imprisonment, or Both, For Any Person Interfering or Obstructing With Delivery Of This Letter, 18 Sec 1702 Code


or so Heritage Mortage Banking Corp. of Morristown, NJ would have you believe. Se Habla Espanol.



2
Jul/08

43(B)log: "Is it False To Make Your Competitor's Service Worse and Then Say You're Better?"


43(B)log: “Is it false to make your competitor’s service worse and then say you’re better?“:

NetQuote sued MostChoice, a competitor, and Brandon Byrd, its employee. NetQuote alleged that MostChoice employed Byrd to pretend to be individuals interested in insurance quotes. He thus submitted hundreds of false inquiries to NetQuote’s web site, knowing that NetQuote’s clients would receive bad information that could not lead to a sale. NetQuote’s clients complained about the bad information, and some ended their relationships with NetQuote. To add false advertising to injury, MostChoice advertised itself as having superior accuracy and reliability in insurance referrals compared to NetQuote.