In an important development for product demonstration claims, a federal court recently dismissed with prejudice a lawsuit claiming that Apple’s advertising overstated the voice recognition capability for Siri.
When Apple first launched its iPhone 4S the company touted the inclusion of a voice-activated personal assistant, called “Siri.” A number of commercials were aired in which consumers were shown querying Siri with requests regarding traffic, weather, sending texts, restaurants, gas stations and music. To see Martin Scorsese using Siri click here. The advertising claims at issue in the Siri case are “product demonstration” claims. Product demonstration advertising claims often are powerful and persuasive because they provide the consumer with direct evidence about how great the product works. But they are also subject to attack, often on the theory that they fail to depict the performance of the product in a way that replicates typical usage by ordinary consumers in the marketplace.
In the lawsuit, plaintiffs claimed that they purchased the iPhone 4S and then tried to replicate many of the same types of questions to Siri that were featured in the commercials. Plaintiffs alleged that Siri either failed to respond to the questions or required multiple attempts before being able to do so and that Siri’s alleged failure to perform as advertised was a violation of California law.
The court dismissed the case on several grounds. First, the court held that plaintiffs had failed to allege which “specific statements within those advertisements . . . were false and misleading. Interestingly the court noted that “Apple would be hard-pressed to defend against an allegation that the overall impact of those commercials and advertisements misled Plaintiffs. This does not meet the level of specficity required by Rule 9(b).”
Second, the court found that Apple’s characterizations of Siri as “amazing”, a “breakthrough”, and “an intelligent personal assistant” was puffery rather than an actionable advertising claim.
Third, plaintiff’s argument that Siri failed to operate on a consistent basis as allegedly depicted in the commercials was rejected because the Court found that plaintiffs had failed to define the level of consistency they contended was portrayed by the ads (e.g. 75% of the time, 90%, etc.)
Finally, the court found that to the extent plaintiffs were arguing that the advertisements implied that Siri would work “virtually perfect[ly],” that claim must be dismissed because no reasonable consumer would hold such a belief. The court found that absent a representation that a product would perform at a certain level, merely demonstrating a product performing a particular task does not imply that it performs the task without fail.
Of course, trial court judges, like the rest of us mortals, are also not “virtually perfect” so it will be interesting to see what the 9th Circuit has to say if plaintiffs appeal.