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?
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.
Action for declaratory judgment that Verizon Wireless’s advertising claims of having “America’s Most Reliable 3G Network.”
Complaint Best 3g Network
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.
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.
TradingMarkets.com: “FedEx lawsuit alleges UPS ‘most reliable’ ad is false”
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.
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?”
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.