Statement that advertiser is “2.0” version of competitor is puffery

GeoMetWatch Corp. v. Hall, 2019 WL 3537297, No. 1:14-cv-60
(D. Utah Aug. 2, 2019)
GeoMet and Advanced Weather Systems Foundation (AWSF) negotiated
to create a joint venture for the purpose of constructing and deploying a
satellite-hosted weather sensor system and commercially exploiting the data
derived therefrom, but the incipient agreement collapsed. Defendant Tempus, and
associated individuals and entities, allegedly colluded with AWSF and others to
deprive GeoMet of its business opportunity. The court here gets rid of a false advertising claim.
The alleged falsities included: (1) In response to a question
from a representative of a prominent American defense contractor about whether
Tempus would be “assum[ing] the role of [GeoMet]” in the STORM project, Alan
Hall (an owner of Tempus) stated that “yes we are replacing the roles and
duties of [GeoMet]. We will own and manage the relationships of all entities in
the consortium.” Copies were sent to representatives of AWSF—the putative
manufacturer of the proposed sensor.  The
court thought it wasn’t clear that a statement to a single defense contractor could
be “commercial advertising or promotion” in the absence of facts about how many
entities were in the relevant market. 
But even setting that side, with the arguable exception of the statement
“we are replacing the roles and duties of [GeoMet],” “the statements are all
clearly forward-looking” and weren’t literally false: the court found that
Tempus had a plan to do these things. 
And they couldn’t be misleading to a reasonable business development
executive at a multi-billion-dollar defense contractor, who “would not
interpret these statements of future intent as ‘representations of fact.’” As
for “replacing the roles and duties,” that indicated an ongoing activity, which
was true—Tempus was preparing to do this.
Emails among Tempus- and AWSF-associated people also couldn’t
ground a Lanham Act claim. Statements to co-venturers aren’t “commercial
advertising or promotion.” 
GeoMet challenged Tempus’s website representations that it “designs,
manufactures and operates environmental and weather monitoring instruments,
known as STORM … on a global scale…. From our sensors we gather the most
sophisticated weather data ever produced and sell it to sovereign governments
and commercial entities.” When this was published on the website, Tempus allegedly
“had no means of gathering, producing, [or] selling weather data.”  This was thus a literally false
statement.  But there was no evidence
that this false statement ever confused anyone. 
Although Tempus proved that, at the relevant time, “some individuals in
the aerospace defense contractor space were confused about whether GeoMet or
Tempus would be partnering with AWSF to construct and launch STORM, this
confusion is wholly disconnected from Tempus’s false statement that, in April
of 2014, Tempus had the ability to gather and sell weather data derived from an
operational STORM sensor.”
In a demonstration of how much more rigorous false
advertising doctrine is than trademark doctrine, statements that Tempus was “GeoMetWatch
2.0” were also not actionable. Given that the statement was made to a member of
Congress—and Mark
Twain’s quip on that topic notwithstanding
—it wasn’t false or misleading.
It didn’t convey the message that Tempus was literally “GeoMetWatch 2.0.” “Rather,
any reasonable person—and certainly any reasonable member of the defense,
satellite, or meteorological industries—would interpret this statement to mean
that Tempus was a newer, better version of GeoMetWatch. In other words, this
statement was mere puffery ….”  GeoMet
argued that the statement falsely implied that GeoMet was out of the venture,
but it didn’t; to the extent that the statement indicated that GeoMet couldn’t
compete with Tempus, “that implication is likely to have been expressed and
received as mere puffery.”

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