Trademarks Class 23

False advertising

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§ 43(a)(1)(B)

— any “false or misleading — “description of fact” or— “representation of fact”

— “which . . . in commercial advertising or promotion,— misrepresents the nature, characteristics, qualities, or geographic origin — of his or her or another person’s goods, services, or commercial activities”

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Gordon & Breach v. AIP

“[T]he Act’s reach is broader than merely the ‘classic advertising campaign’ to which defendants would confine it, and it covers misrepresentations by non-profit and for-profit organizations alike.” [765]

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What is “commercial advertising or promotion”

“(1) commercial speech; (2) by a defendant who is in commercial competition with plaintiff; (3) for the purpose of influencing consumers to buy defendant’s goods or services. . . . [and] the representations (4) must be disseminated sufficiently to the relevant purchasing public to constitute ‘advertising’ or ‘promotion’ within that industry.” [766]

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Neuros Co. v. KTurbo

“The district court was troubled by the fact that ‘there is no evidence that the statements at issue were presented to any members of the general public.’ Well of course not; members of the general public do not buy high-speed turbo blowers or advise waste water treatment plants on the purchase of such blowers.” [769]

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Coca-Cola v. Tropicana

Proving irreparable harmDirect competition + actual

confusion = Likelihood of harm

Likelihood of harm + difficulty in ascertaining harm = Likelihood of

irreparable harm

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Coca-Cola v. Tropicana

Standard for preliminary injunctionCoca-Cola “must demonstrate either (1) a likelihood of success on the merits of its case or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly in its favor.” [not in CB]

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If literally false, no need to show how audience understands it

“When a merchandising statement or representation is literally or explicitly false, the court may grant relief without reference to the advertisement’s impact on the buying public. When the challenged advertisement is implicitly rather than explicitly false, its tendency to violate the Lanham Act by misleading, confusing or deceiving should be tested by public reaction.” [773]

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True? false? neither?

“Premium Pack is pasteurized juice as it comes from the orange.” True False Nonsensical

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Clorox v. Proctor & Gamble

“If the advertisement is literally false, the court may grant relief without considering evidence of consumer reaction. In the absence of such literal falsity, an additional burden is placed upon the plaintiff to show that the advertisement, though explicitly true, nonetheless conveys a misleading message to the viewing public.” [778]

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Literally false by necessary implication

“Although factfinders usually base literal falsity determinations upon the explicit claims made by an advertisement, they may also consider any claims the advertisement conveys by ‘necessary implication.’ A claim is conveyed by necessary implication when, considering the advertisement in its entirety, the audience would recognize the claim as readily as if it had been explicitly stated.” [779]

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Autodesk v. Dassault Systemes

“A statement is puffery if the claim is extremely unlikely to induce consumer reliance.”

“[A] statement that is quantifiable, that makes a claim as to the specific or absolute characteristics of a product, may be an actionable statement of fact while a general, subjective claim about a product is non-actionable puffery.”

“Puffing is exaggerated advertising, blustering, and boasting upon which no reasonable buyer would rely.” [not in CB]

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Church & Dwight v. Clorox

With an establishment claim, “a plaintiff can prove literal falsity by showing that the test ‘did not establish the proposition for which [it was] cited’ because it is either ‘not sufficiently reliable to permit a conclusion’ or ‘simply irrelevant.’ ” [785]