“Natural” trade name can mislead consumers, court holds

Early
v. Henry Thayer Co., 2021 WL 3089025, No. 4:20-CV-1678 RLW (E.D. Mo. Jul. 22,
2021)

Thayer
markets THAYERS Natural Remedies, which are sold in drug stores, grocery
stores, and other retail stores nationwide. Early sued Thayer for violations of
the Missouri Merchandising Practices Act, breach of express warranty, and for unjust
enrichment for misleading consumers into believing its products are natural and
do not contain synthetic ingredients.

After
other holdings, such as finding no FDCA preemption, the court turned to Thayer’s
argument that its trade name couldn’t be an express warranty. Trade names, Thayer
argued, “only ‘communicate[ ] that any product bearing said trademark is
authentic.’ ”

But
there were factual issues about the trade name: the ® only appeared after THAYERS,
not after “Natural Remedies.” Still, Thayer argued, it was part of a
registration it had, albeit a disclaimed part. [Which really should answer the question:
it’s not a protectable part of the trade name as such.] But anyway, the court
declined to find any rule that a trade name can’t create an express
warranty.  “The Court does not agree that
authenticity is the only message a trade name can convey. As other courts have
found, it is not unreasonable for consumers to attach meaning to the names of
products, particularly when descriptive words are part of the name.” Seems
right, especially after Tam and Matal!

However,
the court dismissed any claims based on Thayer’s online statements because the plaintiff
didn’t allege that she was personally exposed to or relied on those statements.

The
court also found that listing ingredients on the side panel wasn’t enough to
avoid misleadingness for purposes of a motion to dismiss, and that the
plaintiff alleged a sufficient risk of future harm to allow her claim for injunctive
relief.  

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