Monday, November 23, 2009

Black Friday: False Advertising Bonanza

Dear me, it's already Thanksgiving week and the most infamous shopping day is nearly upon us.1 With the plethora of advertisements stuffing my mailbox, e-mail inbox and floating around on television, it gives a trademark man like me a bit of pause and some reason to reflect.

Advertising law is an interesting little offshoot of the friendly confines of trademark law. As we all know trademarks are source designators,2 but advertising poses an interesting question. Particularly false (or misleading) advertising.

The Lanham Act does provide a nice little section on false advertising,3 which is nice, but at first glance, it generally seems to relate more to a likelihood of confusion analysis related to the DuPont factors4 or counterfeit goods. But right now, I'd like to talk about good ol' misleading and false advertising.

So section 1125(a) for purposes of this discussion (and generally as far as I'm concerned) relates to factual misleading statements to a consumer that would be considered a material misstatement of fact.5

There have been numerous types of these claims in the past, that Airborne supplements "prevent" colds,6 that Nike hasn't been using slave labor,7 false endorsement claims by celebrities,8 yogurt that aids your digestion (but doesn't),9 and the list goes on and on . . .10

What a false advertising case really turns on in court takes us back to the statute. A "false or misleading description of fact" that causes mistake or deception.11 This is particularly true for advertising, as it got its own section (1125(a)(1)(B).12 What gets advertisers into trouble is that misstatement or confusion causing activity. As a former advertising man (I'm know, I'm being exceptionally self-aware today), there's always a fine line between "selling"/"puffery" and "lying" or "deception." Puffery is not actionable, lying is.13 Merchants will always to try to get a good deal off the unsuspecting consumer, that's why there's trademark law (among others), but the best advice and best practice for consumers is to be vigilant.

The thing to be careful of these days (particularly leading up to Black Friday) is to look extremely carefully at the fine print many of the retailers use. Often there's a limited number of a particularly good deal in the store (only four (4) of something at each store), or customers are required to purchase an unreasonable volume of the product to get the price listed (i.e., you need to buy five (5) 45" LCD televisions to get the price of $400 each). Granted some retailers are trying to make Black Friday easier, but I wouldn't hold my breath. The way people are (competitive) and the way retailers have historically acted (attempting to cheat you out of your money) suggests it will be business (and mayhem) as usual.

Happy Thanksgiving to everyone.

1: Black Friday (Shopping), (last visited Nov. 22, 2009).
2: See Anheuser Busch, Inc. v. Stroh Brewery, Co., 750 F.2d 631, 648 (8th Cir. 1984).
3: 15 U.S.C. § 1125(a) (2006).
4: In re E.I. DuPont DeNemours & Co., 476 F.3d 1357 (1973).
5: 15 U.S.C. § 1125(a)(1)-(3).
6: Airborne Settles Suit Over False Claims, Nat'l Public Radio, (last visited Nov. 24, 2009).
7: Kasky v. Nike, Inc., 45 P.3d 243 (Cal. 2002), certiorari dismissed as improvidently granted, 539 U.S. 654 (2003).
8: Hilton v. Hallmark Cards, 580 F.3d 874 (9th Cir. 2009) (celebutante Paris Hilton suing Hallmark gretting card company); Facenda v. N.F.L. Films, Inc., 542 F.3d 1007 (3d Cir. 2008) (notable NFL broadcast anouncer John Facenda); Browne v. McCain, 612 F. Supp. 2d 1118 (C.D. Cal. 2009) (Jackson Browne suing Presidential candidate John McCain for use of his song "Running on Empty").
9: Nathan Olivarez-Giles, Dannon Settles False Advertising Lawsuit over Activia, DanActive Yogurt, L.A. Times, Sept. 19, 2009, (last visited Nov. 24, 2009).
10: See, e.g., Fashion Boutique of Short Hills, Inc. v. Fendi USA, Inc., 314 F.3d 48 (2d 2002).
11: 15 U.S.C. § 1125(a)(1) (2006).
12: Id. § 1125(a)(1)(B).
13: Time Warner Cable v. DIRECTV, Inc., 497 F.3d 144, 159-60 (2d Cir. 2007) ("[P]uffery [is] not actionable under the Lanham Act."). The Time Warner court did find that the cable company's literally untrue statements however, were actionable. Id. at 154-55.

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