wrong images aren’t false if differences from actual product aren’t material

Current Enters. Ltd. v. Affiliati Network, Inc. 2021 WL 1383368, No.
20-cv-23692-UU (S.D. Fla. Mar. 26, 2021)

parties compete to sell novelty consumer goods; defendant allegedly copied
plaintiff’s business model including its product launches, providing its
affiliates with Strong Current’s “marketing methods and materials, which
include, among other things, product depictions and graphics.” Affiliati’s
product offerings are allegedly “similar, but different” than those marketed by
Strong Current, and therefore the products sold to consumers “differ from those
depicted in the marketing materials.”

the false advertising claims failed because they didn’t identify material
differences in the products. For example, Strong Current alleged that when
consumers purchase a portable air conditioner from defendants, “they do not
receive the air conditioners depicted in the misappropriated marketing materials,
rather, they receive an inferior portable air conditioner that is different
from the one depicted.” The ads allegedly lead consumers to expect to receive
units containing “(a) handles; (b) single-colored (gray) fronts; (c) fronts
with two gray sections; (d) round edges; and (e) bases and tops that are the
same size.” But “the delivered units do not have handles and have a different
overall look and feel from the advertised units.” However, the complaint didn’t
explain why consumers would care.

Strong Current alleged that consumer confusion existed where “[o]n multiple
occasions, consumers have purchased products from Profit Point, where the
products had been marketed using the misappropriated Strong Current methods and
materials …, and then contacted Strong Current (or its Marketing Affiliates)
about problems or issues with the orders, incorrectly believing that they (the
consumers) had purchased the products from Strong Current (or its Marketing
Affiliates).” It alleged that “when the consumers have issues or problems with
their orders and need to contact the seller and cannot recall where they
purchased the products, a generic internet search … leads them to Strong
Current’s (or its Marketing Affiliates’) websites.” But this was pure speculation;
it didn’t allow the reasonable inference that defendants’ use of allegedly
misappropriated marketing materials was likely to cause consumer confusion. There
were no allegations that defendants’ marketing materials referred to Strong
Current in any way. Indeed, the complaint explicitly alleged that defendants
market and advertise their products under a different brand.

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