“Local” can be falsifiable representation of fact

Bimbo Bakeries USA, Inc. v. Sycamore, No. 13-cv-00749, 2017
WL 3089011 (D. Utah Apr. 28, 2017)
Leland Sycamore invented the process and formula for making
Grandma Sycamore’s Home-Maid Bread and subsequently received federal trademark
protection for part of the packaging’s design. 
Leland ultimately sold Grandma Sycamore’s to Bimbo.  Bimbo sued Leland’s son and related entities
for misappropriation of trade secrets, trademark infringement, and false
advertising based on their sales of Grandma Emilie’s bread.  Though the recipe changed in 2013, Bimbo
alleged that a person involved in developing the new recipe (now sold under a
new brand name) learned the secret from Leland. In July 2012, defendant U.S.
Bakery adopted a new tagline for its products, “Fresh. Local. Quality,” which
provided the basis for the false advertising claims.
Among other things, the court held that U.S. Bakery’s use of
additional ingredients not included in the Grandma Sycamore’s recipe didn’t
absolve it from misappropriation liability. 
Still, whether it used Bimbo’s purported trade secret was disputed.  Infringement claims also avoided summary
False advertising: Bimbo argued that the U.S. Bakery tagline
“Fresh. Local. Quality” was false in Utah because U.S. Bakery neither
maintained a baking facility in the state of Utah nor contracted with a Utah
facility to manufacture its bread products. U.S. Bakery argued that the tagline
wasn’t sufficiently definite to be a false designation of origin and wasn’t
attributable to the relevant product. 
The court disagreed.  While
the US Department of Agriculture has concluded “[t]hough ‘local’ has a
geographic connotation, there is no consensus on a definition in terms of the
distance between production and consumption,” Bimbo has provided surveys
showing that the tagline “local” was misleading and material to potential
purchasers. “Because the term local does not carry a set definition, whether
the term is false or misleading is a question appropriate for the fact finder.”  [This really skips over the key question:
does the term have a sufficiently consistent definition among the relevant
consumers to measure its truth or falsity? 
“Good” doesn’t have a set definition either—but it’s nonactionable

As for whether the tagline was actually used on relevant
products, U.S. Bakery argued that shelf-liners saying “Freshly Baked in Utah” were
only used for products that were not baked in Utah once, when a product was
mis-shelved (there are apparently U.S. Bakery buns baked in Utah for which the
slogan was not problematic).  U.S. Bakery
argued that Bimbo couldn’t prove that this was “systematic” (which would be “advertising
or promotion”).  However, Bimbo’s sales
director testified that he saw the shelf liners used in Utah in 2014 during a
time that he understood that U.S. Bakery did not have a bakery in the state,
creating a genuine factual issue.

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