Court Considers Whether Name of Product on Packaging Constitutes False Advertising

Coe v. General Mills

Factual Allegations:

  • “Cheerios Protein” name is misleading because it says nothing about added sugar (and the product has more sugar than regular Cheerios)
  • Amount of sugar is listed in the nutrition facts on side of box

Decision:

  • Labeling on front of box can be misleading even if more detail is provided in “nutrition facts” on side panel
  • Court was skeptical that a reasonable consumer would be misled by name/labeling, but denied the motion to dismiss because at this point it wasn’t impossible to say that a reasonable consumer could be misled

 

Court Considers Whether Ad Depiction Is “Puffery”

Coe v. General Mills

Factual Allegations:

  • “Cheerios Protein” has more sugar than recommended for children by the FTC and USDA
  • Ad shows race car driver strap a child into a Cheerios Protein stock car, race him to school where he is fed Cheerios Protein pit-stop style, and then leaves him “fueled up” and ready to learn
  • Ad is deceptive because product isn’t “healthy”

Decision:

  • Claim was dismissed as “puffery”
  • The advertisements claim that eating Cheerios Protein is akin to “fueling up” a race car driver is “so exaggerated as to preclude reliance by consumer”

 

NAD Says Online Retailer/Marketer Responsible for Product Claims

In re Goop, Inc. (5977)

Factual Allegations:

  • Lifestyle blog/retailer made claims regarding products highlighted/for sale on a blog
  • Example: “This formula helps regulate vital energy, encourages healthy metabolic function…”
  • Product is manufactured by a third-party, not the blog/retailer

Holding:

  • “The obligation to ensure that advertising claims are truthful extends beyond the manufacturer of the product to affiliates who market the product”
  • Product efficacy claims on website impose an obligation on Goop to verify that the products provide the benefits it claims

 

Kardashian Trademark Infringed by Licensee Even if Kardashian’s Breached License

2Die4Kourt, et al. v. Hillair Capital Management, LLC, et al.

Factual Allegations:

  • Kardashian’s granted Haven Beauty the right to its trademarks for cosmetics
  • Kardashian’s terminated the license for Haven Beauty’s alleged breach
  • Haven Beauty countered that it wasn’t in breach, and Kardashian’s improperly terminated the license
  • Haven Beauty continued to use trademark and did not pay royalties

Holding:

  • Even if the Kardashian’s had no right to terminate or breached first, Haven Beauty cannot stop paying royalties and continue to use a trademark
  • Thus, Haven’s Beauty’s use constituted trademark infringement

 

NAD Looks at Online Review Ad Claim

In re Vapore (#5971)

Factual Allegations:

  • “More 5 Star Reviews Than Any Other Steam Inhaler”
  • Advertiser combined reviews from 11 major online retailers constituting 85% of market for product sales and for online reviews

Decision:

  • 85% of market for product sales and for online reviews was sufficient sample
  • However, too much potential for “double counting”
  • Many reviews were “dated”
  • Finally, ratings may have been given for reasons other than stated in commercial            
  • Thus, requested claim to be discontinued