“Paris” on makeup doesn’t itself indicate origin

Eshelby v. L’Oréal USA, Inc., 2023 WL 2647958, 22 Civ. 1396
(AT) (S.D.N.Y. Mar. 27, 2023)

Eshelby sued L’Oréal over its use of “Paris” (including as
part of the brand name “L’Oréal Paris”) and French-language text in ads and on
the front of packages when the products aren’t made in France. They say in fine
print on the back or side of the packaging that they are manufactured in the
United States or Canada. She alleged that American consumers associate French
products with high quality and luxury such that consumers are willing to pay a
premium for French products, and further that other cosmetic products sold in
the United States that display the word “Paris” are manufactured in France, making
this deceptive to reasonable consumers. She brought the usual
California claims
and some others, but the court dismissed them all.

Some of the accused products didn’t have other French words
on them. “As a matter of law, a mere reference to Paris is insufficient to
deceive a reasonable consumer regarding the manufacturing location of a
product.” Plus:

The word “Paris” always appears in
stylized text underneath the word “L’Oréal,” in the same font and color as the
word “L’Oréal,” such that a reasonable consumer would understand that “Paris”
is part of the brand name “L’Oréal Paris.” … And, although a reasonable
consumer may infer from the brand name that the company originated in Paris, a
reasonable consumer would not also conclude that a particular product is
manufactured in Paris, or elsewhere in France—particularly because each product
also contains a disclosure on the back label stating the manufacturing

What does this mean for geographic deceptiveness or
misdescriptiveness refusals, especially in light of the greater constitutional
scrutiny given to refusals after Tam and Brunetti?

Reasonable consumers may not have to look for corrections to
misleading matter on the front of the label, “but the front label on the
products Eshelby purchased do not make any actual representations about country
of manufacture; rather, Eshelby inferred from the word ‘Paris’ and the
French-language text that the products were manufactured in France. The front
label is not so misleading that a reasonable consumer who cared about the
country of manufacture should not be expected to look at the full packaging for
a disclaimer, which was clearly and correctly provided on the labels of each
product Eshelby purchased.”

Even the addition of other French-language text was
insufficient. Although she pointed to two other products with French names that
were made in France, she didn’t allege “that the examples she points to are
comparable to the haircare and makeup products she actually purchased, i.e. in
terms of retailers, price point, or target audience.” Also, they presented
their French text differently, with product names in French, and the
French-language descriptions preceding the English translations. The L’Oréal
products use product names in English only as well as large/preceding English
descriptions, making it implausible that they were made in France for French
consumers. And there was nothing on the labels making explicit claims about
country of manufacture except the truthful disclosures on the back.

“The mere presence of words in a foreign language is
insufficient to mislead a reasonable consumer.” [Citing a case about Spanish;
is that really generalizable to all languages?]

Amending the complaint to include allegations about a survey
supporting her claims would be futile because “[a] plaintiff cannot rely solely
on consumer surveys to state a claim.” Anyway, the survey only showed
respondents the front of the product, and omitted responses stating that, based
on the front label of the product, the respondent does not know where the
product was manufactured.

from Blogger http://tushnet.blogspot.com/2023/03/paris-on-makeup-doesnt-itself-indicate.html

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