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False light no problem for Jews for Jesus

Jews for Jesus*, a litigation-happy racket that not only bases its religion business entirely on LIKELIHOOD OF CONFUSION but for whom misrepresentation and falsehood defines its entire enterprise, has once again pushed the First Amendment in a direction that works for it and avoided legal sanction for its unethical, but legal, way of utilizing other individuals for its own ends. In Jews for Jesus v. Rapp, the Florida Supreme Court has refused to adopt the tort of false light defamation on the ground that such claims are too rife with free speech risks and add little not otherwise available to most plaintiffs in a position to benefit from it.

What did these charmers do this time?  “The gravamen of Rapp’s claim is that Jews for Jesus falsely and without her permission stated that she had ‘joined Jews for Jesus, and/or [become] a believer in the tenets, the actions, and the philosophy of Jews for Jesus.'”  The philosophy of Jews of Jesus is Messianic Judaism, i.e., a sort of Christianity comparable to schmaltz herring steeped in bacon grease, and it is fair to say that most non-Jews have no idea just how shocking such a claim can be for a Jewish person, especially an older one, to read about herself on the Internet, if it is factually false.

The court acknowledged that there could be scenarios where the tort, as defined in the Restatement, could be useful.  Read More…

Magnesium ad nauseum

Ryan Gile reports that it’s Coke vs. Pepsi on behalf of their sport-drink proxies, Gatorade and Powerade:

Coke’s advertising . . . makes the claim that Gatorade is “missing two electrolytes” – calcium and magnesium – that are found in Powerade. According to the complaint, the trace amounts of calcium and magnesium found in Powerade are so minute that it really has no nutritional benefit.

Pepsi’s causes of action are for false advertising, unfair competition, trademark dilution, deceptive trade practices, and injury to business reputation.

Believe it or not, the second paragraph refers to the lawsuit brought as a result of the allegations in the first paragraph.  Well, those claims do scan, mostly, but — what does advertising puffiness have to do with trademark dilution?  Hey, it’s in the magnesium!  Or not, it appears.

Scalping consumers

Private-label branding is a huge topic, and a very interesting one. I wrote a huge post about it here, focusing on Hellman’s (or, for you westerners, Best Foods) mayonnaise lookalikes. The question is: How close to a famous brand’s trade dress (which may in and of itself be protected by trademark) can a “store brand” or private label package get before there’s a plausible argument for unfair competition base on consumer confusion? Here (above) is a cute video I even found on this topic, via this Australian website. It’s a hot issue, and Rebecca Tushnet probably wrote up the best blog treatment of it.

Now, the premise of the question itself is that the private label product is a generic or low-grade-branded (I just made up that phrase) offering that is less expensive but which consists of the same fundamental features as the “famous brand.” The consumer is invited to “compare” the two products, which typically have the same active ingredients, but often differ in material respects – mainly the price. As Rebecca explained:

The [McNeil Nutritionals, LLC v. Heartland Sweeteners, LLC] opinion began by noting that, in 2005, private label products accounted for 20% of all US supermarket, drugstore, and mass merchandiser sales, or $50 billion. At that time, more than 90% of consumers were familiar with store brands, and almost as many bought them regularly. Such brands are typically found next to the coordinate national brands, and their packaging often invites comparison with a national brand, whether by similarity in dress or by “compare to” statements. Shelf tags also explicitly invite comparisons. The court accepted as fact that consumers are generally aware that private label products are sold next to national brands, and that prominent price displays allow consumers to see the cost differences between them.

So the consumer “gets” the concept of the private label, expects the private label product to be compared to the famous brand, and makes a choice.

As it turns out, the illustration above is one Rebecca used to illustrate her blog post: a collage of Head & Shoulders shampoo bottles and various private label products that look more or less alike the real thing.  Some more, some less.

But none of them looks like what I found in the Clifton, New Jersey Acme Market on a recent visit. Read More…

Survey says….

Here’s a very good article by Arnold & Porter’s Randy Miller, strictly for trademark lawyers and those who encamp around them, on the Advertising Compliance website run by my old friend John Lichtenburger about an important development:  The Third Circuit’s decision in Pernod Ricard USA, LLC v. Bacardi U.S.A., known as “the Havana Club case” and won, well, by my even older friend David Bernstein, concerning the use of surveys in unfair competition claims under the Lanham Act.  Excerpts:

The Third Circuit’s recent decision in Pernod Ricard USA, LLC v. Bacardi U.S.A. about “Havana Club” rum establishes a new battleground in Lanham Act cases. In Havana Club, the defendant successfully urged the court to disregard a survey because the advertising claim (arguably) was unambiguously truthful on its face (the “Havana Club” defense). Prior to Havana Club, the only case that stood for such a proposition was the Seventh Circuit’s decision in Abbott Labs. v. Mead Johnson & Co., which was corrected, criticized as an outlier, and not followed by other courts. Now, Havana Club has revitalized Mead Johnson and given the defense greater credibility, not only in the Third Circuit, but in all Circuits. The “Havana Club” defense is sure to spawn new battles in future Lanham Act cases and litigants should anticipate these issues. This article reviews (1) the use of survey evidence in Lanham Act cases; (2) the Mead Johnson and Havana Club cases; and (3) the significance of Havana Club to litigants in future cases. . . .

Until Havana Club, Judge Easterbrook’s decision in Abbott Labs. v. Mead Johnson stood alone as an exception to the survey rule.  In Mead Johnson, the challenger used a survey to show that consumers interpreted the advertising statement “1st Choice of Doctors” to mean that a majority of doctors preferred the product, which was allegedly false claim because only a plurality of doctors preferred the product with many not expressing a preference. Judge Easterbrook refused to even consider the survey, because he determined that the phrase “1st Choice of Doctors” was unambiguous and simply meant that more doctors preferred the advertiser’s product to the competitive product. Having made this determination, Judge Easterbrook would not allow a survey to be used to offer a different meaning to the advertising statement, holding that surveys should not be “used to determine the meaning of words or to set the standard to which objectively verifiable claims must be held.” Judge Easterbrook’s decision was grounded in First Amendment principles, and the opinion noted that a contrary ruling would have the effect of chilling commercial speech. The opinion also indicated that there must be a limit to the use of surveys. Mead Johnson has not been followed, and many judges and commentators that cite to Mead have distinguished or criticized the case.

Bookmark, read and know.  Also read Rebecca Tushnet‘s thoughtful, academic commentary.