That's Who That Is? SwipeBids v QuiBids – Fake Blogs, Fake Reviews and Melissa Theuriau

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SwipeBids and QuiBids are ‘pay per bid’ auction sites. They will promote prior sales of popular consumer electronics and other items for very low prices. For example, on SwipeBids right now, it indicates that it sold an Apple MacBook Pro for $387, and a $20 Amazon Gift Card for $2. How do they do it? Bidders pay a membership fee, and then pay some small amount (say .50) to bid. The economics are similar to those of a lottery – the bidder buys a cheap ticket, the house’s revenues of the bids tends to exceed the value of the item (especially since people likely place multiple bids on an item).
SwipeBids alleges that QuiBids stole copyrighted content, fabricated news stories, fabricated customer testimonials and wrongfully misappropriated the image of French news anchor Melissa Theuriau. This is the second SDNY case this summer containing allegations of ‘fake reviews’ as false advertising.
And If you know Melissa Theuriau, please tell her that her image may have been wrongfully used.
Complaint Swipebids Quibids Copyright False Advertising


"Fake" Review Sites As False Advertising

Plaintiff Budget Van Lines alleges that defendant MovingScam.com purports to be a review site of moving sites, not properly disclosing that it has ties to its favorably-rated moving companies.
Complaint Budget Van Lines Moving Scam


"Planted" Articles About Spoiled Spices Not Actionable Under 43(a)

I agree with 43(B)log: this ‘commercial speech’ case has interesting ramifications wrt ‘anonymous’ plants and false advertising:
The FDA seized one shipment of plaintiff’s product (West Indian spices) because it was tainted. A local newspaper targeting the West Indian community reported on the seizure in an article that ‘reads as if’ it were written by one of plaintiff’s competitors. The implication of the news article is that you should avoid all of plaintiff’s products. One of plaintiff’s competitors distributes the article via email. Plaintiff sues the competitor (and, seemingly, not the newspaper) for defamation and false advertising (alleging that competitor was responsbile for publication of the article in the first place). Competitor moves to dismiss,
Defamation claim upheld on a motion to dismiss. The article’s over-stating of the significance of the seizure (that the public should be suspicious of ALL of plaintiff’s product as a result of one seizure), strips away fair-reporting and truthfulness defenses.
Here’s the interesting part of the decision: The Lanham Act claim was dismissed because the competitor’s name doesn’t appear in connection with the article and therefore doesn’t propose a commercial transaction with competitor, even if the competitor paid the publication to run the article. Even competitor’s email (identifying competitor and inviting discussion) doesn’t propose a commercial transaction. No commercial speech.
So the lesson is: your client’s should pay publications to run articles that slag the competition, just don’t mention client and just steer clear of defamation.
Decision Bedessee Beharry


Housewife From [your town] Loses 47 Pounds!!

Geo Targeting is the method of determining the location of a website visitor and delivering different content to that visitor based on that location. Today I saw an ad the headline of which was “Housewife From [location of my ISP] Loses 47 Pounds Drinking Acai Berry Juice!” and the copy of which referred to ‘Jane Doe From [my location] . . ‘ If Jane Doe doesn’t live in my town, then that is a literally false statement. 43(a)? Is it material? I don’t know, but why do they rig the ad this way?


99% True

WSJ: Kills 99.9% of Germs – Under Some Lab Conditions:

Everything from hand-sanitizing liquids to products like computer keyboards, shopping carts and tissues tout that they kill 99.9%, or 99.99%, of common bacteria and fungi.
But some of these numbers look like the test scores in a class with a very generous grading curve. They often don’t include all pesky germs, and are based on laboratory tests that don’t represent the imperfections of real-world use. Human subjects, or countertops, in labs are cleaned first, then covered on the surface with a target bug. That is a far cry from a typical kitchen or a pair of grimy hands.
Advertising near-total effectiveness is common; AT&T Wireless’s television ads touting its network coverage of 97% of the U.S. is just the latest example. But it is especially common for health products. Naturally, companies make the claims because they sell products.


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


Text of Decision in GATORADE v POWERADE: Not Completely False

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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


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.


FedEx Disputes With UPS As To Who Is Reliable

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


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.