There may come a time (but hopefully not) where you need to write a website disclaimer, email, Facebook post, whatever trying to dispel consumer confusion and head off an advertising lawsuit.  How might you do that?  Keep editing if your first draft looks something like this:  “We have learned that some customers are confused and think that we sell ABCompetitor’s Cool Toys.  Please take note that we are not related to ABCompetitor.”

Let’s see how this played out in a recent order issued by the Northern District of California in United Tactical Systems, LLC v. Real Action Paintball, Inc., Case No. 14-cv-04050-MEJ.

The plaintiff there was United Tactical Systems, LLC (“UTS”), which sells PepperBalls.  PepperBalls are affectionately known as irritant projectiles. which are generally small plastic spheres containing an irritating powder, much like pepper spray except they can be shot from a distance.  Defendant Real Action Paintball, Inc. (“RAP4”) also sells irritant projectiles and had entered into a supply agreement with the company that had previously manufactured PepperBalls.

After it entered into the agreement, RAP4 made a post on its website and in an email broadcast that said: “RAP4 is proud to announce the acquisition of machinery, recipes, and materials once used by PepperBall Technologies Inc.. . . .  Now we manufacture our Less Lethal Live Rounds directly, on that original machinery and conforming with the original specifications to provide our customers with improved quality control and uninterrupted supplies. . . .”

At some point RAP4 must have learned that at least some consumers thought that RAP4’s post meant that RAP4 was associated with PepperBall Technologies, Inc. because RAP4 sent out a series of “clarifications” and “disclaimers.”  It posted on its Facebook page and elsewhere that it had come to RAP4’s attention “that there has been some misinformation and confusion in relation to our acquisition of PepperBall Technology.”  However, RAP4’s website continued to display the original post even after RAP4 issued its clarification.  RAP4 also disclaimed any association or affiliation with PepperBall Technologies.

In deciding UTS’s motion for a preliminary injunction of RAP4’s advertising, the district court relied on the clarifications and disclaimers to find that the initial post was either literally false or literally true but likely to mislead or confuse consumers.  The Court pointed out that “[w]hile these disclaimers are perhaps an attempt at clarification, the Court cannot ignore full context. . . . The implication is that RAP4’s projectiles are, for all intents and purposes, PepperBalls.”

The Court also pointed to the “clarifications” as evidence supporting the preliminary injunction motion.  The Court wrote that while “RAP4 is purportedly clarifying the confusion, in the same breathe [sic] it insinuates that it has acquired PepperBall Technology.”  In reaching this conclusion the Court looked to statements made by RAP4 in its clarifications, such as “Clarification About RAP4’s Acquisition of PepperBall Technology.”

Ultimately, the Court granted in part the motion for preliminary injunction, including issuing an order barring RAP4 from “advertising, displaying, or distributing products, literature or any other materials bearing the word(s) PepperBall or PepperBall Technologies to refer to RAP4 or RAP4’s irritant projectiles.”

The Court undoubtedly had other concerns not addressed here in reaching its order, but, in hindsight, what could RAP4, or you, our reader, do to minimize risk and to keep your advertising from becoming an irritant projectile?

  1. Do not suggest through innuendo what you cannot say in fact, especially when writing about your competitor.
  2. Think very carefully about word choice.  RAP4’s admission that there had “been some misinformation and confusion” in its “clarification” certainly assisted the Court in finding that the original message was confusing.
  3. Take down the offending post immediately.