Viral Video Which Didn't Name Competitor Enjoined Based on Claims of False Advertising

Tempur Seal v. Wondergel

Allegations:

  • Defendants published viral video featuring plaintiff's mattresses — but plaintiff's name was not used
  • Character in video falls back on mattress "in a manner and accompanied by a facial expression and sound effects that suggest that the mattress is extremely hard and painful for those who use it"

​Holding:

  • Depiction is false and deceptive
  • No "humor exception"
  • Unnamed plaintiff's product was identifiable and defendant named plaintiff in "comments" section

"8 Hour Buzz" Held Not Infringing of "5 Hour Energy"

IP Holdings LLC v. Green Planet, Inc.

Click here to view image.

Allegations: "8 Hour Buzz" infringes "5 Hour Energy" trademark and design

Holding:

  • No likelihood of confusion
  • 5-hour Energy mark was "inherently weak" because it describes what the product is supposed to do — provide energy for five hours
  • Color scheme — a fade of red to orange to yellow — is suggestive of a rising sun, which was "inherently weak"
  • 5 Hour energy does not have the exclusive right to use time units and synonyms for energy in naming an energy shot

Consumer Perception Survey Held Inadmissible in False Advertising Case

Playtex and Eveready Battery v. Munchkin

Allegations:

  • Defendant made advertising claims about the ability of its refill cartridges to work in plaintiff's Diaper Genie after a change in product design
  • Plaintiff provided consumer perception survey as proof of confusion

Holding:

  • Survey held inadmissible based upon faulty questionnaire
  • Survey question only asked whether there was a date restriction on the fit of the product, not the ultimate question of whether the advertising contained a false message that the refills would fit the plaintiff's product after the change in product design

Change in Product Leads to Immediate False Advertising re Comparative Claims

Playtex and Eveready Battery v. Munchkin

Allegations:

  • Defendant made packaging claims about the ability of its refill cartridges to work in plaintiff's Diaper Genie
  • Plaintiff changed product design such that Defendant's products no longer fit
  • Sometime thereafter, defendant "stickered" packaging to disclose refills only worked on "old" Diaper Genie

Holding:

  • In time between product change and addition to disclaimer, defendant's advertising was false and deceptive
  • Since sticker wasn't literally false and plaintiff couldn't provide survey evidence that consumers were confused, "stickering" was upheld

Use of Rap Name “Rolls-Royce Rizzy” Isn’t False Association With Car Company

Rolls-Royce Motor Cars Ltd. v. Robert D. Davis

Facts: Defendant adopted the stage name "Rolls Royce Rizzy", under which he advertises music and sells t- hart

Holding:

  • No trademark infringement, unfair competition or false designation of origin
  • Risk of confusion among consumers fatally undercut by:
    • Sophistication of Rolls-Royce customers and
    • Dissimilarity of products

Burying the Lead: Court held use of "Rolls Royce Rizzy" with ads called "Call of Booty" does amount to trademark dilution as tarnishment. Injunction granted