SDNY suit claims that copper-top claims die in the fine print

Don’t Poke the Rabbit

It’s a face-off between two marketing icons.

In one corner, there’s Energizer Holdings – yes, the crew responsible for the oft-maligned but nonetheless subconsciously omnipresent Energizer Bunny.

In the other corner, the well-known Duracell, of “copper top” battery fame.

The dispute? Energizer is livid over Duracell’s recent advertising campaign bragging on its Optimum brand battery and filed suit over it in the Southern District of New York as September ended.

The brag? “Duracell is intentionally misleading the public to conclude that Optimum batteries offer both ‘extra life’ and ‘extra power’ in all devices – when they do not ... .” Duracell alleges that one tag, for instance, says “extra life, extra power,” while another reads “both is better than not both.”

Standards

It isn’t just that Duracell’s claims are allegedly untrue; the complaint takes the company to task for the clumsiness with which it attempted to get away with them.

“Only those rare consumers willing to meticulously parse Duracell’s minuscule and ambiguous disclaimers may uncover Duracell’s actual, more limited claim,” the complaint states, before diving into a list of hedges Duracell allegedly made regarding competing batteries and the devices in which the batteries should be used.

The Takeaway

“These paltry and sporadic benefits are not the stuff great ads are made of,” the complaint sniffs, “and, indeed, barely seem worth touting at all.”

It’s a fun sort of thing that you might expect from Energizer, whose marketing department is surely besotted with its animatronic rabbit that now ceaselessly beats a drum in some dark compartment of the collective unconscious. At another spot in the complaint, Energizer says the disclaimers are printed in “barely legible mice-type.”

Snarkiness aside, disclosures cannot cure an explicitly false claim, and implicit deception can be cured only through effective notices, which must be clear, conspicuous, proximate and understandable.

Energizer accuses its rival of false advertising violations of the Lanham Act and New York state law, and unfair and deceptive trade under New York state law.