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.
Text of Decision in GATORADE v POWERADE: Not Completely False
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.
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.
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.
"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.
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.
Perdue’s issues stem from Tyson’s claims that its chickens were “raised without antibiotics” and, later, “raised without antibiotics that impact antibiotic resistance in humans.” In April, a U.S. District Court in Baltimore ruled that Tyson remove the claims from its advertising while the suit was pending and set a May 15 deadline to stop Tyson from running any of the “raised without antibiotics” advertisements.
A libel action by a manufacturer against an attorney who published a newspaper advertisement stating that users of that manufacturer’s product “may” have claims to relief constituted a strategic lawsuit against public participation, the Sixth District Court of Appeal has held.
Word-of-mouth marketing in the U.K. will face radical restrictions starting May 26, when it will become a criminal offense for brands to seed positive messages online without making the origin of the message clear.
Plaintiff (d/b/a Where It All Began) alleged that defendant (d/b/a Cooperstown Bat Co.) engaged in false advertising of its commemorative baseball bats in Cooperstown, falsely claiming to “manufacture” and “make” baseball bats and to make them in Cooperstown (“where it all began”), when in fact the bats are mostly made in defendant’s factory two miles outside Cooperstown.
Text of Complaint - False Advertising, Stinger v Taser
Taser published quotes from a study about its competitor, Stinger, that Stinger alleges are false or misleading. Excerpt from complaint: "Taser’s conduct evidences an evil hand guided by an evil mind and outstrip the bounds of decency, fairness, and fair competition."
When you’re a company as high profile and as rich as Apple, you get sued for a lot things, from patent infringement (eight cases since January alone, according to Barron’s) to “sexual harassments with Apple gadgets” (see here). But one suit that was widely derided as frivolous when it was filed last year has been quietly settled out of court, the Chicago Tribune reports.
The terms were not disclosed, and Apple as usual won’t comment, but “settled” usually means that the company paid the plaintiffs something to make their case go away.
North American sub of Software AG enters into contract with US corporation and its Brazilian agent to provide support in Brazil for Software AG's Brazilian customers. There was a dispute and the contract was terminated, leaving the Brazilian agent exposed in its support commitments. The Brazilian agent then made statements in Brazil to its customers that were allegedly false (essentially implying that it had Software AG's continuing resources and support, when that was no longer the case).
The Southern District of NY applied the Vanity Fair three part test to exercise jurisdiction over the statements: (1) US citizenship of defendant (the Brazilian agent's parent); (2) no conflict with foreign law (Brazil bars false statements as well); and (3) effect on US commerce (Software AG's American sub was injured by the false statements).
Software AG, Inc. et al v. Consist Software Solutions, Inc. et al, 1:08-cv-00389-CM (SDNY Feb 21, 2008).
"The current case concerned allegedly false claims that the Dyson model DC18 doesn’t lose suction and that it is the “most powerful lightweight” vacuum cleaner. This suit was filed four months after an earlier false advertising suit was settled and dismissed with prejudice. . . .
While the first case was pending, Dyson pitched the DC18 (under a different name) to a number of nationwide retailers using the “most powerful lightweight” and “doesn’t lose suction” claims . . .
Dyson defended on grounds of res judicata. The court agreed that Oreck’s claims with respect to the DC18 were part of the same cause of action as the earlier lawsuit."
Airborne Herbal Supplement has annual sales of $300 mil., is apparently not a miracle cold-buster but is "an overpriced, run-of-the-mill vitamin pill that's been cleverly, but deceptively, marketed," according to lead plaintiff in a suit that has resulted in a settlement under which Airborne will pay a $23.3 mil. settlement, including refunds to purchasers of the product. Via AdAge.
Quiznos, the toasted-sandwich chain, [invited] the public to submit homemade commercials in a contest intended to attack a top rival, Subway. The contest rules made it clear that the videos should depict Quiznos sandwiches as “superior” to Subway’s.
Subway promptly sued Quiznos and iFilm, the Web site owned by Viacom that ran the contest, saying that many of the homemade videos made false claims and depicted its brand in a derogatory way.
My Moses & Singer colleague and America's sweetheart advertising lawyer, Myka Todman, observes:
"Consumer generated content such as this blurs the distinction between commercial content created by advertisers and non-commercial content created by consumers and posted, for example, on blogs.
Because claims made by an advertiser must be substantiated, may not false or misleading and must comply with various state and federal laws, inviting consumers to create content or ads (like those at issue here) presents a host of problems when the content infringes a competitor's trademark, contains product claims, defamatory statements, etc.
Should Section 230 immunity apply in a situation such as this? How uninvolved was Quiznos really? They requested the content, set forth the guidelines, paid the creator and ran the ad. As Bill Blackburn (creator of the ad in question and an advertiser himself) said in the article, it was clear what Quiznos wanted - he simply delivered the commercial that Quiznos couldn't."
Just how different can a trailer be without becoming false advertising?
In this case, those lines from Riley made the movie seem funnier than it was, the president’s line made the dramatic stakes seem higher than they were, and the scenes at the Lincoln Memorial made the historical conspiracy seem more ingenious than it was (historical clues hidden right under our noses!). I can say with confidence that some of those elements played a part in my wanting to see the movie.
Rearranging scenes in the trailer is one thing. But what about this business of putting stuff in the trailer -- a *lot* of stuff -- that isn’t in the movie at all? If they can get away with “National Treasure”-style misrepresentation, what’s to stop other moviemakers from putting special effects, witty lines, exotic locales and hot-looking actors into *their* trailers, just to get us to go to a movie that doesn’t have any of those things?
So how to advise your movie trailer producer client to avoid false advertising? Draft a suitable disclaimer for the trailer. I'll get you started:
"Objects in the trailer may appear more entertaining than they are"
"Movie subject to change without notice"
"This trailer contains movie and movie by-products"
"Any discussion of this trailer without the expressed written consent of Major League Baseball is strictly prohibited"
"Contents of movie may settle during shipment"
If you're stuck with coming up with a suitable disclaimer, here's a list to consult.
BUT SERIOUSLY, 43(B)log reviews this question and opines that it is certainly within the realm of possibility that because a trailer implies that the footage shown is in the movie being advertised, that the trailer as Pogue describes it is explicitly false, and that a colorable action may lie.
And as long as we're free associating about sharp movie practice: some of you may recall that in 1984 Eddie Murphy was the hottest comedy star around. Dudley Moore made a movie called "Best Defense" and the advance word was that it was horrible. Reportedly, after major filming was finished, Murphy was brought in and twenty minutes of film was made and added to the film, which was then advertised as a Dudley Moore and Eddie Murphy comedy, even though they never appeared in the same frame. Hilarity ensued.
"Christie's spokesman Rik Pike stood behind the authenticity of the auction and said the disgruntled buyer's case had no merit. The lawsuit, filed in state court in Manhattan, demands millions of dollars in punitive damages and a refund for the visor and two other items Moustakis bought at the 2006 auction."
Pulsonic Technology Is Not A Revolution In Shaving??
Phillips Domestic Applicances v. Braun and P&G, CV 07 CV 11290 (SDNY Dec 17 2007) (complaint on Pacer):
"Braun has been losing market share in the U.S. electric shaver business to Norelco - the brand owned by Phillips - for years . . . To reverse this trend, Braun and its new owner, P&G, needed to significantly refresh the Braun shaver line. But, because Defendants lacked any new true invention to offer consumers, Braun and P&G began to pretend that they did." (Para 1, Complaint).
This is a false advertising case filed by Phillips in the SDNY yesterday concerning Braun's advertising for its PULSONIC shaver. If Phillips allegations are correct, then a lot of comforting notions are going to fall away. For example, there's no correlation between liquid rippling and skin rippling. Also, the presence of the 'ripple' in the skin, does not in fact depress the skin, thus exposing more hair. And, sadly, both the Pulsonic and the 360 Complete produce approximately 6 Pascals of acoustical pressure, not enough to create any sort of sonic effect.
"One of [Lululemon's] lines is called VitaSea, and the company says it is made with seaweed. The fabric, according to product tags, “releases marine amino acids, minerals and vitamins into the skin upon contact with moisture.”
Lululemon, which has received positive media coverage for its fabrics, also says the VitaSea clothing, made from seaweed fiber supplied by a company called SeaCell, reduces stress and provides anti-inflammatory, antibacterial, hydrating and detoxifying benefits.
There is one problem with its VitaSea claims, however. Some of them may not be true."
. . .
". . . The company . . . prints the company’s “manifesto” on its red shopping bags.
The manifesto includes messages like, “Stress is related to 99% of all illness,” “Friends are more important than money,” and “Coke, Pepsi and all other pops will be known as the cigarettes of the future. Colas are not a substitute for water. They are just another cheap drug made to look great by advertising.”(emphasis added)
MediaPost Publications: IAB Tackles Lead-Generation Best Practices:
"Amid continued controversy surrounding the business of lead generation, the Interactive Advertising Bureau stepped in Wednesday with a list of best practices to help standardize the transfer and receipt of data between advertisers and lead-generation service providers.
. . . .Still, marketers are questioning the legitimacy of many of the leads being generated--particularly those attained through incentives like marked-down iPods. In addition, the Federal Trade Commission has expressed its concern over potential privacy violations and false advertising claims."
Broadcast News Room: "Comcast, Qwest Settle Broadband-Ad Dispute": Comcast sued Qwest over ads in which Qwest claimed that 72% of Internet Users thought that Qwest's broadband service is faster than or as fast as Comcast's (editor's note: Internet users' perceptions of speed apparently being more important than reality). The parties have settled and Qwest has reportedly agreed not to sue Comcast over its 'Slowskys' ads, in which turtles prefer slower Internet speeds.
Burger King franchisee alleges that McDonalds is liable for false advertising in connection with statements made by McDonalds not about Burger King but about McDonalds' own promotions (which in itself was interesting - it turns out that a company that McDonalds paid to run one of its sweepstakes promotions had embezzled winning game pieces, therefore representations made by McDonalds that its sweepstakes was fair, was false - however McDonalds pled an intervening cause defense).
Anyway: given that the Lanham Act accords standing to any person who believes that they are likely to be damaged by the bad act in 43(a), does the BK franchisee have standing:
11th Circuit: No. There is a five factor test in the 3d Circuit case, Conte Brothers, 165 F.3d 221, 225 (3d Cir. 1998) that weights factor such as proximitiy of the bad act to plaintiff's harm, the speculativeness of the damages, and possibility of duplicative damages, among other factors, and in this situation, found that the franchisee was too far from the action to have standing.
Phoenix of Broward v. McDonalds, 06-14726 (11th Cir June 22, 2007).
"Bausch & Lomb has filed a lawsuit against Alcon, alleging that it made false advertising claims about Bausch & Lomb's contact lens solution, ReNu MultiPlus. The company seeks an injunction against Alcon's advertising campaign and damages for loss of sales due to the campaign, according to a press release from B&L."
"Commercial Free" Suit Against XM Not Covered By Arb. Clause
8th Circuit: Deceptive trade practice claim regarding XM's claims that it is 'commercial free' not covered by arbitration clause. Text of decision here. Coverage here.
" . . . Poughkeepsie Chevrolet mailed thousands of fliers to Hudson Valley owners of General Motors cars with a headline that read “IMPORTANT – SECOND NOTICE – SAFETY RECALL,” complete with a recall number, warning consumers that their vehicles “may be at risk” and to call their “designated safety recall center” and schedule an appointment to address the recall. In reality, the recall, including the recall number, was fictitious. The phone number listed on the flier was actually Poughkeepsie Chevrolet’s service center, for which the dealer hoped to increase business."
"Best Buy is under investigation by Connecticut's attorney general after consumers complained they were denied deals found at the electronic retailer's Web site by store employees who pulled up a lookalike site that listed higher prices on some merchandise."
Update: Engadget comments, quoting Best Buy that this was an intranet. I wonder if the sites were identical not to deceive, but, assuming that the intranet site served as a 'beta' or 'draft' or 'mock up' for the public site, many pages would be identical to the public site, and some employees may have been genuinely confused themselves about the relationship between the public and private sites. Just speculating.
SDNY Rules On What Shatner And Simpson Meant By 'Best'
DirecTV ran ads promoting its satellite TV service featuring William Shatner in one ad and Jessica Simpson in another (Shatner clip and background here). In the Simpson ad, the claim is made that DirecTV provides the best picutrem and the narrator states ". . .For an HD Picture that can't be beat, get DirecTV." Time Warner sued in the Southern District of New York in December, arguing that because the HD quality of both cable and satellite HD service is equivalent, the claim that DirecTV's picture is the best, is literally false. DirecTV argued that the claim that the picture was the 'best' referred to the signal for all channels, including non-HD ones.
Held: Viewing the commercial in its entirety, the claim that the picture was the 'best' had to be interpreted in the context that the entire ad focuses exclusively on HD channels, and therefore the claim that the picture was the 'best' was literally false. The commercials were enjoined.
Time Warner Cable, Inc. v. DirecTV, 06-CV-14245 (SDNY Feb 5, 2007) (Swain, J). Email me for a copy of the order (too large to upload).
NY Lawyer: "Tom Waits Settles Advertising Lawsuit" ("Grammy Award-winning singer Tom Waits has settled a lawsuit in which he claimed an automaker and an ad agency violated his rights by imitating him in TV commercials, his lawyer said.")
If there were an official theme song to Lanham Act Section 43(a), then Tom Waits' Step Right Up would be it.
Diamonds can be produced in a lab. Unlike cubic zirconoia, these diamonds are molecularly identical to naturally occuring diamonds (and rival natural diamonds for clarity.
Now the diamond associations are asking the FTC that such diamonds be referred to as synthetic diamonds and not cultured diamonds. Cultured diamond creators argue that their process is analogous to that used for creating cultured pearls, in that the gem is created not by 'synthesizing' but by reproducing natural processes (WSJ reg req).
"When Leslie-Ann Lescarbeau saw the sales pitch from a pharmacy called Med4Home on the Internet and TV in 2004, she couldn't resist signing up. Med4Home promised to deliver her medications right to her door and file her Medicare claims for her. Lescarbeau, 50, suffers from asthma and other lung problems and sometimes uses a wheelchair. But what Med4Home actually sent her, she believes, were reformulated versions of the brand-name medicines she was supposed to take. One of the drugs even allegedly contained alcohol, a known lung irritant. After Lescarbeau made several harrowing trips to the ER, struggling to breathe, a doctor discovered the Med4Home drugs and ordered her to switch pharmacies. "I did not see anything on Med4Home's Web site that said I wouldn't be getting the real thing," says Lescarbeau, a nondenominational Christian pastor who lives in Middletown, Conn."
The not always responsive answers to our question: 'is there such a thing as an authorized tribute band (other than Beatlemania)?' pour in.
Larry S. advises us of rasta metal band Dread Zeppelin, and points out that Robert Plant, at least, speaks favorably of them.
Eva R. advises us of a CTM registration for ABBA MANIA, which doesn't appear to be owned by Abba.
Peter I. advises us of the PINK FLOYD EXPERIENCE, which is produced by a company also responsible for BJORN AGAIN, another Abba tribute. However we can't find any indication that it is authorized by Pink Floyd.
Special Free Offer of Legal Advice: If you are a tribute band that will perform the music of XYZ, and you want to name yourself the XYZ Anything, without the authorization of the owner of the XYZ name, I will advise against it.
From 43(b)log: Defendant sells product to the large auto makers. It represented its product to be the 'same', presumably in terms of quality, to that of plaintiff, even though its product was cheaper. Plaintiff alleges that this is false. Defendant established that purchasers conducted their own evaluations, and made their purchasing decisions independent of defendant's representations. Court holds for defendant. 43(b)log points out that the Court's holding can be characterized as either being based on 'puffery' or immateriality. Stating that one's goods are the same as a competitor, in the absense of a specific objective claim, is mere puffing up. Alternately, seller's claims are immaterial when buyer conducts its own analysis.
Are Distribution Channel Communications Advertising?
From 43(B)log:
'Plaintiff . . . makes aftermarket leather seat covers for many different kinds of cars . . . Defendant Nissan has an approved aftermarket leather program (ALP) for some Nissan models, allowing Nissan dealers to buy aftermarket leather from approved vendors for installation by the vendors.
In 2003, in response to new federal air bag safety standards, Nissan began installing an 'advanced' air bag in some cars. This air bag uses a pressure sensor in the seat to detect whether a child or an adult is in the front passenger seat and thus turns off the passenger-side air bag when a child is present. Nissan soon decided to exclude cars with the advanced air bag from its ALP, based on concerns that installation of aftermarket leather could cause an air bag malfunction, posing a safety hazard. Nissan didn't conduct any tests to see whether this was true."
