When state consumer protection is narrower than federal

Posted on July 28, 2017 by rtushnet
Natreon, Inc. v. Ixoreal Biomed, Inc., 2017 WL 3131975, No.
16-4735 (D.N.J. Jul. 21, 2017)
Natron sued defendant/counterclaimant/third-party plaintiff SKP
and defendant Ixoreal, alleging false advertising and unfair competition in
connection with an extract used in holistic and alternative medicines: KSM-66,
which is derived from the root of the ashwagandha plant. SKP filed three counterclaims,
alleging that Natreon also engaged in false advertising and unfair competition in
selling its competing product. SKP also filed a complaint against third-party
defendant NutraGenesis. Natreon successfully moved to dismiss SKP’s
Counterclaim for violation of the New Jersey Consumer Fraud Act.

SKP’s counterclaims alleged a number of false statements about Natreon’s
product, patent protection, and production processes.  In addition, SKP alleged that Natreon tried to
recruit SKP into engaging in price collusion and engaged in unfair competition
by threatening meritless litigation on several occasions.  SKP also alleged that both Natreon and
NutraGenesis engaged in deceptive acts in an attempt to obtain confidential
information, by posing as prospective customers.
Natreon successfully argued that SKP didn’t allege that it
suffered a consumer-like injury, as required for an NJCFA violation.  While neither “the statute nor the New Jersey
Supreme Court has explained with any precision who constitutes a consumer,” the
Third Circuit has advised that “the entire thrust of the [statute] is pointed
to products and services sold to consumers in the popular sense.” Thus, the
NJCFA has only been applied to business entities “who purchase goods and
services for use in their business operations,” as, for example, desk
chairs.  The alleged wrongdoing here
wasn’t consumer-oriented and the harm was not consumer-like.
The court also struck SKP’s affirmative defense of failure
to mitigate damages, which wasn’t a recognized defense to a Lanham Act claim or
the coordinate common-law claims.

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SDNY declines to extend ONY to press releases about studies

Posted on July 28, 2017 by rtushnet
Mimedx Group, Inc. v. Osiris Therapeutics, Inc., No. 16 Civ.
3645, 2017 WL 3129799 (S.D.N.Y. Jul. 21, 2017)
The parties compete in the wound care biologics market for
tissue-graft products.  Mimedx makes
“EpiFix,” “a tissue graft processed from [a dehydrated] human amniotic membrane
that is derived from donated placentas using [Plaintiff’s] proprietary
technology, including its Purion process.” EpiFix is designed to help “reduce
inflammation, enhance healing, and reduce scar tissue formation.” Osiris (cool
name), its direct competitor, makes Grafix, “a cryopreserved placental
membrane” used to treat acute and chronic wounds.
A comparative study conducted in Montana was eventually
published in the peer-reviewed journal Wound Repair and Regeneration. Osiris
published a press release on its website touting the results of the study.  Mimedx argued that statements in this press
release, as well as in an Osiris brochure, violated the Lanham Act and New York
G.B.L. §§249, 250.
First, the court found that the press release and the
brochure were properly alleged to be “commercial advertising or promotion.”  Osiris argued that its statements weren’t
commercial speech under ONY, Inc. v. Cornerstone Therapeutics, Inc., 720 F.3d
490 (2d Cir. 2013).  ONY held that a
medical article’s “contents [we]re not actionable under the Lanham Act” because
statements in scientific literature “are more closely akin to matters of
opinion, and are so understood by the relevant scientific communities.” But
here, Mimedx wasn’t challenging the study, but rather the press release, which
allegedly misrepresented the study, and the brochure, which wasn’t even
reporting on the study. These were “statements in commercial materials directed
principally to consumers, not statements in scientific materials directed to
scientists.”  In ONY, the court of appeals highlighted that the plaintiff there
didn’t allege that the defendant’s promotional materials misstated the relevant
article’s conclusions. The plaintiff here did. 
The “mere fact that the Press Release and the Brochure touch on topics
of scientific debate does not trigger ONY
immunity and disqualify them as commercial speech.”  Were that so, the Lanham Act would hardly
ever be enforceable.
Likewise, Mimedx adequately pled sufficient dissemination to
the relevant public, even though it didn’t plead the number of copies
distributed or the exact scope of the target market.  “The touchstone of whether a defendant’s
actions may be considered ‘commercial advertising or promotion’ under the
Lanham Act is that the contested representations are part of an organized
campaign to penetrate the relevant market.” 
Mimedx identified the relevant market as “the wound biologics market,”
and alleged distribution of the press release to current and prospective
customers, including specific wound treatment centers.  Many of the further details would be
difficult to identify without discovery; Mimedx had done enough to plead
plausibly.
Finally, for the most part, Mimedx plausibly alleged falsity
or misleadingness.  In terms of the press
release’s claims that the study showed “that Grafix has demonstrated superior
outcomes to EpiFix,” the study itself indicated that, “as to certain types of
ulcer wounds, EpiFix closed the same number as or slightly more than did
Grafix; that is, for some wounds EpiFix is arguably equally if not slightly
superior to Grafix, according to this metric.” 
Whether the press release statement was in fact deceptive because of the
overstatement couldn’t be resolved at this stage.
Similarly, the brochure claimed that (i) “A Chronic Wound
Needs: … Viable Cells”; (ii) EpiFix’s Purion process “destroys endogenous
tissue viable cells” and lacks the “presence of viable cells”; and (iii)
“Grafix provides everything you need for treating chronic wounds” such as
“viable cells.”  Mimedx claimed that
these statements were misleading because, “[w]hile viable cells can be
beneficial for wound healing, viable cells in a placental derived tissue graft
like Grafix are not necessary for effective wound healing,” and indeed, “viable
cells added to a chronic wound through an allograft die quickly upon
introduction to the wound or migrate away from the wound site,” and thus have a
“minimal contribution on the effectiveness of the allograft.” A reasonable
consumer could understand the brochure to be claiming that viable cells played
an important, even vital, role in the efficacy of tissue grafts and that EpiFix
lacks such cells while Grafix contains them.  Assuming the truth of Mimedx’s allegations,
this could deceive consumers.  Similar
reasoning applied to the brochure’s claims that EpiFix had a “high level” of Matrix
Metaloproteases (MMPs) while Grafix had low levels, and that MMPs were “not …
desirable” for wound repair.  Mimedx
alleged that the MMPs in EpiFix were inactive and thus harmful, making the
claim of deceptiveness plausible.

Finally, the brochure claimed that EpiFix’s Purion process “ ‘causes significant
alterations’ to the extracellular structural matrix (‘ECM’) of the amniotic
cells, such that the ECM is no longer ‘intact,’ ” which Mimedx alleged was
literally false.  Osiris argued that, to
plead literal falsity, Mimedx was required to identify “studies, literature, or
other [scientific] bas[e]s” for its factual assertion. The court declined to
impose such a requirement.

Similarly, the motion to dismiss §§ 349 and 350 G.B.L.
claims was denied. You might wonder whether this conduct was “consumer-oriented,”
but the parties agreed that this was basically the same question as “commercial
advertising or promotion” (sort of weird), so that was that at this stage.  Still, to the extent that the end users are
members of the general public, I can see an impact on the public from falsity
about these medical products.

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Purple haze: court declines to recognize contributory false advertising claim

Posted on July 28, 2017 by rtushnet
Purple Innovations, LLC v. Honest Reviews, LLC, No.
2:17-cv-138, 2017 WL 3172810 (D. Utah Jul. 25, 2017)

Mostly a jurisdiction case, but defendant GhostBed also
successfully moved to dismiss Purple Innovations’ claim for contributory false
association and false advertising. 
Although the court acknowledged that (1) other circuits have recognized
contributory liability under §43(a)(1)(B) and that (2) courts in Utah have
recognized contributory infringement liability, it nonetheless declined “to
extend” the Lanham Act to allow such an action, with no further analysis.  Look, someone’s got to be the first—or at
least should make an argument about why there shouldn’t be contributory
liability for false advertising when the rest of the surrounding apparatus is the
same as for infringement.

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The hymn of Axiom: failure to disclose in FX trades doesn’t violate consumer protection law

Posted on July 27, 2017 by rtushnet
Axiom Investment Advisors, LLC v. Deutsche Bank AG, 2017 WL
590320, No. 15 Civ. 9945 (S.D.N.Y. Feb. 13, 2017)
Deutsche Bank allegedly delayed execution of electronically
matched trade orders in the foreign exchange (FX) market in order to benefit
from market movements, known as “Last Look.” 
Axiom sued for breach of contract, breach of the implied covenant of
good faith and fair dealing, violations of N.Y. General Business Law §§ 349 and
350, and unjust enrichment.
The FX market is “the largest and most actively traded
financial market in the world, with global trades averaging $5.3 trillion per
day.” It mostly works through bilateral contracts, in which large banks such as
Deutsche Bank represent the “sell side” and act as liquidity providers or
market makers. Most FX trades occur on electronic trading platforms, with price
and quantity data reflecting limit orders placed by liquidity providers.  This data stream is constantly updated—limit orders
are filled or withdrawn within milliseconds. 
Deutsche Bank trades on both single-dealer and multi-dealer platforms; on
the latter, it’s only one of many liquidity providers.  Its single-dealer platform is called
Autobahn, which claims to provide “competitive and reliable prices in over 200
currency pairs” with “dynamically priced executable streaming prices customized
to suit each client’s requirements.”
Beginning in 2003, Deutsche Bank allegedly arranged for the
matching algorithms used by Autobahn and other networks to include an
unnecessary delay of anywhere from several hundred milliseconds to several
seconds. During this time, Deutsche Bank monitored the market movement and if
it moved against Deutsche Bank too much, Deutsche Bank would either reject the
matched order or execute it at the new price. Deutsche Bank allegedly never
directly disclosed Last Look to buy-side FX market participants. The process of
matching orders is undisclosed to market participants; “buy-side market
participants have no way of knowing whether any of their trades were delayed by
Deutsche Bank’s use of Last Look or whether Deutsche Bank reneged on any of
their matched orders.” Although reports about this practice surfaced “several
years ago,” the liquidity providers “said at that time that Last Look was
necessary to ensure that multiple trades were not executed on a single order,”
which the complaint alleged was pretextual and misleading.
The complaint stated a claim for breach of contract arising
out of transactions on Autobahn because the contract between the parties didn’t
unambiguously permit Last Look; so too with transactions on other networks (for
which there was no express contract between the parties).  The claim for breach of the implied covenant
of good faith and fair dealing was dismissed as redundant.  The court dismissed the claim for unjust
enrichment relating to the Autobahn transactions (because of the existence of the
contract) but not for the multi-dealer transactions.


The state consumer protection claims under N.Y. Gen. Bus. Law §§ 349, 350 were
dismissed because FX trading wasn’t consumer-oriented conduct.  Conduct is consumer oriented if it has “a
broader impact on consumers at large,” and consumers are “those who purchase
goods and services for personal, family or household use.” “Transactions
between businesses or sophisticated parties that do not affect average
consumers do not constitute consumer-oriented conduct.” Similar to securities,
FX is traded “as investments, not as goods to be ‘consumed’ or ‘used.’ ” 

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Deceive, inveigle, obfuscate–false discount claims still don’t cause cognizable injury

Posted on July 27, 2017 by rtushnet
Mulder v. Kohl’s Department Stores, Inc., — F.3d —-,
2017 WL 3167620, No. 16-1238 (1st Cir. Jul. 26, 2017)
Mulder bought several items that listed both purchase prices
and significantly higher “comparison prices.” Mulder alleged that these
comparison prices were inflated and invented, and that Kohl’s misled
unsuspecting consumers about the quality of its products. The court of appeals
affirmed the district court’s grant of a motion to dismiss.  She simply didn’t suffer relevant injury under
Massachusetts Chapter 93A.  Even
allegations that Mulder was “induced” to travel to a Kohl’s store by false
advertising and that she therefore suffered a resulting economic injury in the
form of travel expenses wasn’t good enough. 
She didn’t explain how deceptive statements on a price tag could have
caused her to travel to Kohl’s in the first place, and didn’t identify other
deceptive ads with the requisite specificity.
A false sense of value isn’t the requisite identifiable
injury, distinct from the claimed deceptive conduct itself, required by
Massachusetts law. “[A]bsent allegations of real loss grounded in some
objective measure, [an] ‘induced purchase’ theory of injury is simply the ‘per
se’ theory of injury in new clothing.”  So too with the “induced travel” theory,
which, if accepted, “would render meaningless the SJC’s clear rule against ‘per
se’ or ‘deception-as-injury’ claims.”
The same conclusions are also provided in Shaulis v.
Nordstrom, Inc., — F.3d –, 2017 WL 3167619, No. 15-2354 (1st Cir.
Jul. 26, 2017). Shaulis argued that the sweater she bought, allegedly due to
the price misrepresentation, was “worth nothing at all to [her] since she never
would have bought it” absent Nordstrom’s deception. But she received the
benefit of her bargain, and didn’t allege that there were flaws in the sweater
that made it worth less than what she paid. 
Subjective belief in value isn’t a legally cognizable injury under
Chapter 93A.
Of possible interest: the court of appeals rejected Shaulis’
analogy to “fake-Rolex hawking” because “falsely advertising a watch as a ‘Rolex’
is a material misstatement about the watch’s quality.”  But this is obviously insufficient as a
distinction!  According to Shaulis’
complaint, so was the discount claim—and the court of appeals supposedly
accepts her claim that she was materially misled (that is, that she changed her
behavior because of the misrepresentation). 
Why then is not a factual inquiry required to determine whether the fake
Rolex-buyer received the benefit of her bargain?  Arguably there is a drop in resale price once
the fakery is revealed—but if the initial price were low enough, that shouldn’t
matter.  The point being that the court
of appeals carefully distinguishes deception from injury when it comes to the
price representations, but not when it comes to the fake Rolex, because
trademark is different.
The court of appeals did note that Shaulis might well have
inferred greater value from the deceptive price tag, and that Nordstrom could
have hoped that consumers would make that inference.  “Indeed, it is presumably just this kind of
erroneous inference that Massachusetts seeks to prevent by regulation.”  Still, that doesn’t mean there was injury
under Chapter 93A. This essentially means that there is no private cause of
action, because without injury there can’t be injunctive relief either, for
conduct banned by Massachusetts consumer protection law.  But the AG can still enforce the law.

Shaulis’s common law claims — for fraud, unjust enrichment,
and breach of contract – failed for basically the same reasons.

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Deceive, inveigle, obfuscate–false discount claims still don’t cause cognizable injury

Posted on July 27, 2017 by rtushnet
Mulder v. Kohl’s Department Stores, Inc., — F.3d —-,
2017 WL 3167620, No. 16-1238 (1st Cir. Jul. 26, 2017)
Mulder bought several items that listed both purchase prices
and significantly higher “comparison prices.” Mulder alleged that these
comparison prices were inflated and invented, and that Kohl’s misled
unsuspecting consumers about the quality of its products. The court of appeals
affirmed the district court’s grant of a motion to dismiss.  She simply didn’t suffer relevant injury under
Massachusetts Chapter 93A.  Even
allegations that Mulder was “induced” to travel to a Kohl’s store by false
advertising and that she therefore suffered a resulting economic injury in the
form of travel expenses wasn’t good enough. 
She didn’t explain how deceptive statements on a price tag could have
caused her to travel to Kohl’s in the first place, and didn’t identify other
deceptive ads with the requisite specificity.
A false sense of value isn’t the requisite identifiable
injury, distinct from the claimed deceptive conduct itself, required by
Massachusetts law. “[A]bsent allegations of real loss grounded in some
objective measure, [an] ‘induced purchase’ theory of injury is simply the ‘per
se’ theory of injury in new clothing.”  So too with the “induced travel” theory,
which, if accepted, “would render meaningless the SJC’s clear rule against ‘per
se’ or ‘deception-as-injury’ claims.”
The same conclusions are also provided in Shaulis v.
Nordstrom, Inc., — F.3d –, 2017 WL 3167619, No. 15-2354 (1st Cir.
Jul. 26, 2017). Shaulis argued that the sweater she bought, allegedly due to
the price misrepresentation, was “worth nothing at all to [her] since she never
would have bought it” absent Nordstrom’s deception. But she received the
benefit of her bargain, and didn’t allege that there were flaws in the sweater
that made it worth less than what she paid. 
Subjective belief in value isn’t a legally cognizable injury under
Chapter 93A.
Of possible interest: the court of appeals rejected Shaulis’
analogy to “fake-Rolex hawking” because “falsely advertising a watch as a ‘Rolex’
is a material misstatement about the watch’s quality.”  But this is obviously insufficient as a
distinction!  According to Shaulis’
complaint, so was the discount claim—and the court of appeals supposedly
accepts her claim that she was materially misled (that is, that she changed her
behavior because of the misrepresentation). 
Why then is not a factual inquiry required to determine whether the fake
Rolex-buyer received the benefit of her bargain?  Arguably there is a drop in resale price once
the fakery is revealed—but if the initial price were low enough, that shouldn’t
matter.  The point being that the court
of appeals carefully distinguishes deception from injury when it comes to the
price representations, but not when it comes to the fake Rolex, because
trademark is different.
The court of appeals did note that Shaulis might well have
inferred greater value from the deceptive price tag, and that Nordstrom could
have hoped that consumers would make that inference.  “Indeed, it is presumably just this kind of
erroneous inference that Massachusetts seeks to prevent by regulation.”  Still, that doesn’t mean there was injury
under Chapter 93A. This essentially means that there is no private cause of
action, because without injury there can’t be injunctive relief either, for
conduct banned by Massachusetts consumer protection law.  But the AG can still enforce the law.

Shaulis’s common law claims — for fraud, unjust enrichment,
and breach of contract – failed for basically the same reasons.

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OJ may be guilty … of adding ingredients without disclosure

Posted on July 27, 2017 by rtushnet
In re: Simply Orange Orange Juice Marketing & Sales
Practices Litig., MDL No. 2361, 2017 WL 3142095 (W.D. Mo. Jul. 24, 2017)
Plaintiffs alleged that Coca-Cola sold Simply Orange, Minute
Maid Pure Squeezed, and Minute Maid Pure Premium without disclosing its use of
added flavors in these products, as required by federal labeling regulations,
leading consumers in seven states to pay a price premium. Coca-Cola argued that
it didn’t add flavoring in need of disclosure, because the “add-backs” it uses
are 100% made-from-the-orange products.  Also, Simply Orange and Minute Maid Pure
Squeezed don’t consistently use add-backs year round, meaning that there was no
injury/standing. Further, Coca-Cola maintained that only 1 in 25 consumers care
about the add backs, according to its survey expert, and therefore plaintiffs couldn’t
demonstrate reliance on a class-wide basis.  The court partially certified the proposed
class.
The first hint of what will happen comes from the court’s
characterization of Coca-Cola’s standing argument: “that its own inconsistent
and un-labelled use of add-backs means that certain consumers purchased orange
juice not containing add-backs, and those consumers were not injured.”  First, every container of Minute Maid Premium
had add-backs, and thus those consumers had standing.  Second, the existing discovery suggested that
approximately 70 percent of the time, purchasers of Simply Orange and MMPS
would be receiving drinks that included add-back; for certain years, nearly
every container sold included add-back. The plaintiffs alleged that they were regular
purchasers of juice throughout the year, and thus “undoubtedly purchased juice
containing add-backs.”  That was enough
to show standing, as required by Spokeo
v. Robins, for the named plaintiffs who represented the class.
Ascertainability: the court was concerned about the privacy
implications of getting purchaser information from merchants/customer loyalty
cards, but the proposed class included all purchasers of the specified products
under each state’s laws. 
Self-identification would work, given that the odds were that most class
members had purchased an orange juice product containing add-back. “[I]n
low-value consumer goods cases, there may be no better means of identifying
members of a class in circumstances such as these.” If unrebutted consumer
testimony “would be sufficient to establish injury in an individual suit, it
follows that similar testimony in the form of an affidavit or declaration would
be sufficient in a class action.” In re Nexium Antitrust Litig., 777 F.3d 9, 20
(1st Cir. 2015).
  
Commonality: the court was concerned about whether
plaintiffs will be able to provide common proof as to reliance, materiality,
and/or causation, but several of plaintiffs’ issues were susceptible to common
proof: whether the orange juice products contain added flavors not permitted by
federal law; whether the orange juice products omit disclosure of added flavors
as required by federal labeling laws; whether the orange juice products
conformed to the representations on the labels of the products; whether the
orange juice products omitted material information from the products’ labels;
whether defendant warranted that the orange juice products would conform to the
label representations; and whether defendant breached these warranties.  The predominance requirement was likewise
satisfied with respect to some elements of the state law claims, but not
others, particularly requirements to prove reliance, materiality, and/or
causation, as well as damages. 
(Plaintiffs’ proposed damages model was based on a flawed survey that
measured consumers preference for juice with “added flavoring,” vs. no “added
flavoring,” with wording that suggested inferiority, even though current FDA
regulations allow some amount of added flavoring.)  An issues class was therefore appropriate.

However, plaintiffs lacked standing to pursue injunctive
relief.

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“Local” can be falsifiable representation of fact

Posted on July 25, 2017 by rtushnet
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
judgment.
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
puffery.]

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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Pictures of premium cuts of meat on pet food are ambiguous, court says

Posted on July 25, 2017 by rtushnet

Wysong Corp. v. APN, Inc., Nos. 16-11823, 16-11825, 16-11826, 16-11827, 16-11832 (E.D. Mich. Jul. 20, 2017)

Wysong, a pet food manufacturer, sued six competitors, alleging that their packages used images of “premium meats, poultry, fish, and vegetables” that “do not fairly represent the actual ingredients of the packages.” The court dismissed the complaint without further leave to amend.

Wysong offered three theories of falsity/deceptiveness: (1) Defendants’ packaging used images of “premium cuts” such as “lamb chops, chicken breasts, [ ] steak, or salmon fillets” that consumers “would feed [their] famil[ies],” when, in fact, the food is actually made of the “lower cost parts of the animal left over after all the parts a human finds appetizing have been removed.”  (2) Some pacakging used images of “premium cuts from a particular animal when the primary animal ingredient in the product is not only of a lower cost, it is from a completely different species of animal.” (3) Some packaging used images of premium cuts even though the actual “primary animal ingredient is a low cost and low grade animal ‘by-product’ … derived from the cheapest part of the animal” – such “as stomachs, intestines, bone, [and] blood.”  These misrepresentations allegedly manipulated “the natural inclination among pet caretakers to purchase the highest quality, premium foods that are in accordance with their own sensibilities.”

However, the court concluded that Wysong didn’t explain how any particular image was false or misleading in context, but just attached photos of hundreds of defendants’ packages to its complaint and broadly alleged that every image was false and/or misleading in at least one of the three ways identified above.  But the packages varied widely: Some used large images of premium ingredients, while others used smaller images; some put premium ingredients in the center, while others tucked the images in a bottom corner; some used words or names that highlighted or identified the depicted premium ingredients while others didn’t; some depicted a single image of a premium ingredient, while some used more than one; some came in large bags, others in small cans.

The court found that the images weren’t literally false.  An image of a premium ingredient on a pet food package, standing alone, didn’t “unambiguously,” “necessarily,” and “unavoidably,” convey that the food in the package contained the exact cut or grade of the ingredient pictured, because a reasonable consumer could understand the image as merely identifying the type of ingredients in the product.

Likewise, it is possible that consumers viewing Defendants’ packaging would understand that the images of premium ingredients on Defendants’ packages are for “identification purposes only” and are used to help consumers determine the types of meats, poultry, fish, and/or vegetables included in, or the flavors of, the pet food they are purchasing. Thus, as in Scotts Co., Wysong’s literal falsity claim fails.  So too with the “primary species” theory—an image of an animal doesn’t unambiguously communicate that meat from that animal is the primary animal ingredient.  And so too with the animal by-product theory.

Although misleadingness is often a question of fact, it can also be resolved on a motion to dismiss where appropriate.  The court found Wysong’s theories deficient because they didn’t account for context. The court found it implausible that every image of a premium ingredient – no matter its characteristics or context – conveyed the same misleading message about the product’s contents.  By contrast, complaints about food packaging that survived a motion to dismiss provided details about specific images, their placement on the packaging, their relationship to the product names/slogans/verbal claims/other advertising, etc.

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Transformative work of the year (so far): To tell my story, showing near DC now

Posted on July 21, 2017 by rtushnet
To Tell My Story: A Hamlet Fanfic by Alexandra Petri 
Runs until July 30

Although the structuring conceit is a loose retelling of
Hamlet, with a modern-day fangirl as the tragic protagonist Elsie, there are a
number of other fandoms represented, most obviously Harry Potter, secondarily
Twilight (though only identified as “vampire” in the promo materials, grrr), MCU (similar, grr), LoTR, Sherlock, and Historical RPF (Abraham Lincoln).  Some observations:
1.    
Just as Ready Player One hails as its ideal reader an 80s fanboy, this play hails a 21st-century
fangirl.  I laughed a lot. 
2.    
Me, a pedant: Technically, this isn’t a
“fanfic,” but a “fandrama” or “fanwork,” though I understand why they used the
more well-recognized term.
3.    
For a number of reasons, commercial “fanworks,”
if you accept the application of that term to them—and for this play at least I
think we should—tend to be metafictions, interested in the mechanisms of
storytelling (see, e.g., Jasper Fforde’s series, Dumas père’s Kean as remixed
by Sartre, Supernatural’s Fan Fiction and Slash Fiction episodes), especially
if you include in the metafiction category retellings from the perspective of a
character whose experience is elided from the original (see, e.g., Wide
Sargasso Sea, Lo’s Diary, The Wind Done Gone, Jacqueline Carey’s retelling of
LoTR).  This play is no exception, as the
title indicates, and I also sense a reference to Hamilton’s “who lives, who
dies, who tells your story”—especially since Petri’s play, much more than
Shakespeare’s, emphasizes that you (the character) have little to no control
over those things.  In Petri’s version,
Elsie is not able to orchestrate the narrative for Horatio to repeat.

4.    
The program fascinated me because the format is
very specifically taken from the Archive
of Our Own, with its major tags, additional tags and kudos count, as well
as fandom categorizations.  And I’m
pretty sure all the additional tags are canonical,
even though some of them are not what we envisioned when we set up the
additional tags field.  That’s folksonomy
for you.  Anyway, obviously I don’t think
there’s any trademark problem, and wouldn’t be for a creative work even if it
used more of the Archive’s trade dress, but it’s notable that the AO3 now
provides some standard formatting choices.
FFrom outside, a wall inviting audience members to share their fandoms.  I recognized maybe half?

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