AD-ttorneys@law – January 2021 #2

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Mars Mired in Milk Chocolate Melee

Yet another suit is hawkish over Dove Bar packaging claims

Strike Two?

Here’s a follow-up to the recent battle between Mars Wrigley Confectionery and Mohammed Garadi. If you recall — and of course you do; you hang on our every word, right? —Mars and Garadi were locked in a deadly duel of catty memos regarding Mars’ motion to have the case dismissed. Mars led off its missive in support by lambasting Garadi’s counsel for filing a strike suit — a class action among a hundred others that employs “a raft of recycled complaints” against food manufacturers that “leverage the threat of putative class claims and force early settlements.”

We focused on the vanilla claims in Garadi’s class action — and no, we don’t mean the boring ones. Garadi argued that since Mars’ chocolate-coated vanilla Dove Bars were … well … represented as “vanilla,” the “representation on the front of the Product is likely to deceive reasonable consumers into believing the Product has a vanilla taste, provided predominantly or exclusively from vanilla beans … .”

Since Garadi claimed that the bar didn’t taste like vanilla, this was cause for him to sue for misrepresentation, fraud and unjust enrichment under New York law.

Take a Hint!

There was another claim in the suit, though, regarding the chocolate covering of the delicious vanilla center. It’s largely semantic, which is why we focused on the vanilla argument instead, but it’s back in a new form.

In the words of Garadi’s complaint: “Federal regulations require that where a food consists of milk chocolate and vegetable fat ingredients are used, the ‘name of the food is milk chocolate and vegetable fat coating.’”

Garadi called the product packaging “clever” because Mars was dodging the proper nomenclature by representing the bar as “Vanilla Ice Cream With Milk Chocolate” — “milk chocolate” is indeed one ingredient in the product, but only one ingredient in an overall recipe. Mars “could have used a term such as ‘chocolatey coating’ and consumers would have gotten the ‘hint’ that the coating was like chocolate, but not real milk chocolate. Instead, consumers are deceived and pay more for the Products.”

All this by way of review. So — what’s the follow-on?

It’s a class action filed by Garadi’s counsel on behalf of Steven Beers, a consumer from Putnam County, New York.

The Takeaway

Beers’ class action won’t do much to dispel Mars’ “strike suit” accusations against Garadi and his lawyers. First, it targets Mars once more for misrepresentation, fraud and unjust enrichment under New York law. Second, it accuses Mars of misusing the milk chocolate moniker on the same Dove vanilla bar product.

However, just as in Garadi’s case, there’s a real legal argument being made in the new case — except there’s a twist. In Beers’ case, the complaint focuses entirely on the misleading chocolate claim and does not mention the issue of the “natural flavor” of the vanilla. It expands on the relatively short chocolate argument in the Garadi case, again noting that consumers do not expect chocolate to include vegetable oil, but also that chocolate with vegetable oil has a different “mouthfeel” and taste.

Mars had argued in its opposition memo that milk chocolate was the “primary coating ingredient” and therefore, Garadi had no standing to sue. Did that argument inspire the change in tactic?

Are These False Origin Claims Half-Baked?

Suits against possible Hawaiian and Mexican origin claims provide extra carbs for plaintiffs

Limey or Canuck?

Thomas Dodd of Staffordshire, England, isn’t Thomas Dodd anymore.

He’s Celine Dion.

Dodd, a huge fan of the Canadian songstress, was bummed about not being able to see her during the COVID-19 pandemic. One night, he apparently indulged in a bit too much of the spirits. “I can’t really remember the night and forgot all about it the next day,” said Dodd. He knows he watched one of her concerts online, but that was about all he remembered.

A few days later, official documents from the state arrived confirming the name change, which he had apparently performed online in a blacked-out state.

Near, Far, Wherever You Are …

Why tell this particularly crazy story? We just love it, of course, and we wanted you to hear it.

But …

Should we be pressed for a reason — let’s say, by our AD-ttorneys@law editors — we would note that acknowledging exactly where you’re from is crucial when devising marketing copy. Staffordshire Celine Dion, for instance, shouldn’t start a “Real Canadian Poutine” business in England without calling an ad lawyer.

With that ham-handed setup, let’s look at two recent origin cases.

Grinch

First up is Yonkers consumer Robert Galinsky’s class action against King’s Hawaiian, manufacturer and creator of a bread-product subset known as “Hawaiian Rolls.” Galinsky notes that since King’s Hawaiian created the product in the 1950s, numerous other companies have put out their own Hawaiian roll product. (Yet again — we didn’t know this was a thing.)

The case, filed, remarkably, on Christmas Day in the Southern District of New York, also notes that while King’s Hawaiian has sued some of these companies over the years for allegedly copying its distinct orange floral packaging design, it has never sued them over the now “commonly accepted generic name” of Hawaiian Roll.

The plaintiff acknowledges that the company was right in not doing so because “Hawaiian rolls” has become a generic name for this type of product. While that name on its own would not suggest that the rolls are from Hawaii any more than MoonPies are from the moon — a flourish we enjoyed from the complaint — plaintiff alleges that the company’s name (King’s Hawaiian) and the “Hilo, Hawaii” statement on its packaging go a step too far and deceive consumers. The defendant will undoubtedly feel aggrieved because while the product is now produced in California, it was founded in Hilo, Hawaii, a fact it is entitled to promote. Nevertheless, the complaint alleges doing so deceives consumers and leads them to pay more than they would have otherwise for this item. Galinsky is suing for misrepresentation, fraud and unjust enrichment under New York law.

(If the phrase “misrepresentation, fraud and unjust enrichment under New York law” sounds familiar to you, it’s the same package of charges brought by Messrs. Garadi and Beers in our article, above, about Mars Wrigley Confectionery. It turns out that Galinsky is represented by the same lawyer who was accused of launching a fleet of “strike suits” against the candymaker. He never rests, even on Christmas!)

The Takeaway

Our second case has progressed a bit further.

California consumer Juan De Dios Rodriguez sued Olé Mexican Foods in California’s Central District last November under a similar set of allegations, laying out violations of the state’s Consumers Legal Remedies Act, False Advertising Law and Unfair Competition Law. According to his complaint, the company’s tortillas are “deceptively labeled and packaged to target consumers who are interested in purchasing tortillas and other products from Mexico.”

And what are the offending gestures? The phrase “El Sabor de Mexico!” or “A Taste of Mexico!” The “Mexican flag on the front and center of the packaging” and “the brand name ‘La Banderita’ meaning ‘the flag’, which is a reference to the Mexican flag displayed prominently on all the Products.”

Olé filed a motion to dismiss in late December, and it provides a handy origin-claim overview. It leads off with the three factors considered in “determining whether a plaintiff has plausibly alleged that a defendant’s product packaging is likely to deceive reasonable consumers as to geographic origin.” They include the geographic specificity of the defendant’s representations, disclosures disclaiming the product’s actual geographic origin, and whether the defendant merely “evokes” the cuisine, culture, history, people, spirit or feeling of a country or a place.

Olé’s motion asserts that the original allegations fail to meet these tests. Our favorite: “‘A Taste of Mexico!’ … is ‘vague and meaningless,’ as ‘who can say what [Mexico] tastes like?’”

We’re waiting to hear from the court on this one, but for now let’s hope no one takes that taste challenge literally.

Fashion Brand Sues … Ice Cream Company?

Hip creamery may be poking fun at contemporary brand

Still Life With Handbag

We confess to not fully understanding Off-White’s clothing lines. “Rooted in current culture at a taste-level particular to now,” the product line features a mash-up of casual (baggy hoodies, sweats, soccer-jerseyish tees, slippers and sneakers), straitlaced (military coats, formal straight-leg pants, classic evening wear, leather double-breasted jackets) and other (Caravaggio prints?!) fashionwear.

But what sets Off-White off is its reliance on bold graphics and logos — the most recognizable example of which is a diagonal black-and-white striped design. It’s a precious commodity, so much so that the brand is pursuing a lawsuit to defend it against, of all things, an ice cream company.

Gilt by Association

Afters Handcrafted Ice Cream is a California chain with more than 25 locations in the Golden State. The most conventional aspect of Afters — its ice cream, with straightforward, irony-immune flavors like “cookie monster” and “peanut butter s’mores” — is the next-to-last item on the company’s website homepage. Pride of place belongs to the pictures of models hanging around, only occasionally eating ice cream. Their main purpose seems to be promoting After’s extensive collection of swag.

Guess what’s printed on the Afters swag? Black and white diagonals. Is there a similarity there? You be the judge.

In any case, Off-White filed suit in the Central District of California in November, alleging trademark infringement and unfair competition.

The Takeaway

Afters responded to the suit with an answer to the complaint about a month later, and perhaps unsurprisingly the defense promises parody and fair use arguments. There’s an interesting discussion of the entire matrix of defenses over at The Fashion Law, which suggests that, in addition to the parody arguments, Afters may be preparing an argument that the infringing designs “lack secondary meaning.”

To lose on this defense would be an indignity to the fashion house. It would mean that the court believes the public does not associate Off-White’s designs with Off-White in the first place. The Fashion Law references “Off-White’s pattern of co-opting and registering … otherwise ordinary symbols as trademarks — from crosswalk-inspired diagonal lines and the use of quotation marks to stylized arrows that appear on no shortage of packaging.”

By raising mundane symbols to the status of fashion, did Off-White cut off their ability to defend its own designs?

Procter & Gamble Sued Over “Plant-Based” Claims

But does plaintiff make the connection between specific tags and general claims?

Roll Tide

Procter & Gamble have been selling laundry detergent in one form or another for 70-plus years, so their marketing savvy is probably a safe bet. Trend after trend after trend — Tide has surfed them all.

(Sorry.)

The current American marketing tsunami is tinted green, of course — the celebration (obsession perhaps?) of all things “natural,” “sustainable,” “eco-conscious,” “eco-friendly,” “organic” and so forth.

And so we have, inevitably, Tide’s purclean plant-based laundry detergent.

Plant-Based Pileup

And so we also have, inevitably, a class action. Paula Ogurkiewicz, a citizen of Illinois, takes exception to several of the packaging claims made by Tide on the purclean label.

First, that the product is “plant based.” Next, the green leaf background on its front panel, which suggests “the Product is derived entirely from eco-friendly plant-based materials.” Further, text stating the product includes “0% dyes, phosphates, chlorine brighteners,” which “promotes the implication that the Product is derived entirely from eco-friendly plant-based materials.” A back-label brag that purclean is “A Powerful Plant-Based Clean You Can Feel Good About.”

Finally, that the product claims “‘Gentle on Skin,’ ‘Plant Based,’ ‘No Dyes’ and ‘Formula Made with Renewable Electricity’” “give the impression that the Product is derived entirely from eco-friendly plant-based materials.”

The Takeaway

Given these assertions, Ogurkiewicz alleges she was misled when she purchased the product, because purclean “is only 75% biobased content” — the rest of the detergent consisting of cleaning aids “derived from petroleum.”

She’s alleged unfair or deceptive conduct under several state consumer protection laws, violations of the Illinois Consumer Fraud and Deceptive Business Practices Act, and unjust enrichment.

But on first impression, Ogurkiewicz’s class action doesn’t quite add up. It’s hard to see how some of the challenged claims, like “Gentle on Skin,” “No Dyes” and “Formula Made with Renewable Electricity,” have anything to do with whether the product is made entirely from plant-based materials. As for the rest of the challenged claims, it will be interesting to see how the parties and the court handle the question as to when a claim about the nature of some of the ingredients in a product implies a broader claim about all the ingredients in the product. Tide will tell.

We’ll let you know what happens.

Consumers Trade Personal Information for Nothing At All

Third-party award advertiser failed to deliver promised awards.

Grab Bag

Tapjoy, an ad platform operator, specializes in offering in-app awards to players on mobile games. It makes money from third-party advertisers who use its platform to promote their products or services. We’d love to start this story with something more colorful than that simple assertion — for instance, introducing Tapjoy through an amusing story about one of the games for which it provides services — but the folks at the Federal Trade Commission (FTC or Commission) don’t share the names of the games Tapjoy has worked on.

We’ll just have to settle with this sentence from the FTC’s recent complaint against the company: “Tapjoy’s advertising platform appears in certain mobile games, including, for example, games related to war, shopping, sports, and home improvement.”

Sigh.

Dark Bargain

You may be familiar with the advertising convention embraced by Tapjoy — game currency such as “diamonds” or “coins” are earned for specific user actions that are promoted by a screen that interrupts the main action of the game. The user might be offered a discount purchase with an online retailer, told to visit a website or given a one-week trial for a third-party service. The user might also be required to provide personal information while signing up.

And that, according to the FTC, is where it all goes wrong.

The FTC claims that users who forked over their personal information failed to receive the promised award; many, in fact, began to be harassed by spammers and sales calls. In the words of one disappointed user: “All I ever get from completing any Tapjoy offers are SPAM emails and Telemarketers calling my cellphone.”

If that weren’t enough, the Commission alleges that Tapjoy instituted shady customer service practices to deal with user complaints. “In many instances,” the FTC writes, “consumers find that they cannot contact Tapjoy, or that Tapjoy does not respond to their communications, wrongfully ‘closes’ their complaint, or delays responding until consumers have incurred additional charges or other obligations related to the third-party advertisement.”

The Takeaway

To make matters worse, customers complained in outrageous numbers — hundreds of thousands of complaints that Tapjoy was aware of but failed to address.

The Commission launched its complaint at the beginning of January and settled with Tapjoy the same day; the company got hit with deceptive acts and practices charges under the FTC Act.

The settlement is standard fare — first, a prohibition “from misrepresenting the rewards it offers consumers and the terms under which they are offered.” Second, terms and conditions of the offers must be clearly and conspicuously displayed. Third, Tapjoy must take responsibility for monitoring and disciplining errant advertisers.

Three things that any company should do before the lawsuit.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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