Hypo of the day, Denny’s edition

This might require a bit of background.  Tumblr is a social media platform very popular with a demographic of young users; Yahoo! bought Tumblr and is trying to figure out how to make it profitable through advertising.  As a result, Tumblr is trying out new ad formats in users’ let’s-call-them-newsfeeds.  One of these formats, for reasons best known to Yahoo!, was a blank picture frame that appeared mysteriously, without any other labeling.  Because this is Tumblr, a meme generator without equal, users soon started posting their own picture frames with content inside.  Denny’s, again for reasons that are unclear but probably have to do with the accident of the social media person assigned to Tumblr, is probably the most successful advertiser-user of Tumblr.  The Denny’s Tumblr regularly posts weird, amusing, much-reblogged  and -liked posts referring to Denny’s–like Jon Stewart, but less disparaging.  So Denny’s went and inserted a 2000s-style ad into the Yahoo! picture frame.  Denny’s didn’t pay for this, of course.  Would Yahoo! have a valid 43(a) false endorsement claim based on the theory that it looks like Denny’s did pay?

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