(c) profits expert excluded for failure to tie profits to specific photos copied, instead of photos in general

Yellowpages Photos, Inc. v. YP,
LLC, 2019 WL 6033084, No: 8:17-cv-764-T-36JSS (M.D. Fla. Nov. 14, 2019)
YPPI sued YP alleging infringement
of YPPI’s copyrights, and sought disgorgement of the profits derived therefrom.
Its expert, Brown, was offered to opine on whether revenue received from the
sale of ads containing one or more of YPPI’s copyrighted images was reasonably
related to the use of the YPPI copyrighted images. “Brown is the principal of a
graphic design firm specializing in yellow page advertising, production,
billing, data management, and pagination software. Brown has worked for and on
behalf of small publishers and large independent yellow page publishers.” He
reviewed “samples of advertisements that appeared in YP-branded yellow page
directories, which ads contain one or more of YPPI’s copyrighted images.”
Brown’s expert report
explained that the yellow page industry considers multiple factors in creating
ads, one of which was “illustration and photos,” which “relates to creating
impact and visually telling a story about the business and what it sells.” Advertisers
value using images because photos and illustrations “give an ad the opportunity
to create interest, show off products, demonstrate services, and convey emotions
that can be seen with just a quick glance by a browsing user.” Brown stated
that “[w]ithout images, an ad is not useless, but it is certainly disadvantaged
by competing ads with supporting illustrations and photos found in the same
heading.” He explained that customers don’t want lengthy ads, especially where
an image can quickly convey the relevant information, and opined that images
sell ads.
Brown opined that “[b]ased on
the advertisements presented showing the inclusion of YPPI’s photographs, [he
could] state without a doubt, that th[e images] played a key supporting role in
the overall ad composition and assisted in telling the story behind products
and services offered by the advertiser.” Defendants’ customers, in approving
the ads, “certifie[d] that the advertisements presented would serve to promote
their company in a way that is in-line with their business practices, offerings
and identity.” In Brown’s experience, even where the customer already signed an
advertising contract, the customer is always promised “an ad proof where [the]
customer has a chance to approve an ad’s design and content or even cancel if
[the customer] feel[s] it d[id] not represent their business.” Thus, he opined
that “the use of YPPI’s images in the advertisements is related to the revenue
that Defendants received from their customers for Defendants’ publication of
the advertisements.”
The court excluded this
testimony. He could rely on his experience to be designated an expert, but that
didn’t mean that his opinion was based on sufficient facts and data. He testified
that he didn’t review any comparable images available for licensing in the
marketplace, didn’t compare the quality of YPPI’s photos to those available
from any other company, had no personal experience with defendants’ sales
process, didn’t know whether defendants’ customers saw mockups of ads before
purchasing them, didn’t review ads by defendants that didn’t have YPPI images, and
didn’t review information regarding how Yellow Pages prices its ads. He didn’t
have any evidence that any customers would not have purchased an advertisement
if it did not contain a YPPI image, didn’t know of any instances in which a
customer purchased an advertisement because it had a YPPI image, or where the
YPPI image helped sell the ad, or where a customer requested a YPPI image.  He didn’t any of the customers whose ads he
reviewed to learn whether the YPPI image influenced the customer’s decision to buy
the ad.
The court found that there
wasn’t enough knowledge underlying the opinion. Even if it had been impractical
to interveiw all defendants’ customers, he could have interviewed some. He
could have looked at non-YPPI images available to defendants.  He didn’t know whether YPPI’s images played
any part in any of defendants’ sales, so his opinion wasn’t supported by
sufficient facts or data.
Likewise, YPPI didn’t show that
his opinion was the product of reliable or accepted methods. “Simple reliance
on experience … is not sufficient to meet the Court’s gatekeeping requirement.”  Brown didn’t explain how he determined that
use of YPPI images was related to defendants’ profits. For example, he didn’t
review other available images and conclude that YPPI’s were better.  He didn’t even state that certain photo
features, like color or angle, were particularly useful, and that YPPI photos
had those feartures. He didn’t argue that being able to draw from YPPI’s pool
of images increased the database of potential images available, attracting
customers who desired a large number of options. This wasn’t a methodology.
[The real question here is
about baseline. Are we being asked whether the presence of images is important
to ads, or whether the presence of these images is important? I have to admit,
I’d be a bit more inclined to give the copyright owner the benefit of the doubt
on this one, assuming infringement is shown. 
It may well be that a different image would have been just as good as
the infringed image, but the fact of the matter is that the infringing image
was the one used. If images in general are important to ads, shouldn’t the
defendant bear the risk here?  At the
very least, why wouldn’t the burden on the defendant to show that the
expressive characteristics of the infringing image weren’t relevant to the
profits from the ad?]

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general allegations of harm to Legalforce from TM scammer sufficed for Lexmark standing

Legalforce RAPC Worldwide P.C.
v. Glotrade, No. 19-CV-01538-LHK, 2019 WL 6036618 (N.D. Cal. Nov. 14, 2019)
Legalforce “offers services
including trademark preparation and prosecution, patent preparation and
prosecution, copyright registration and counseling, international trademark and
patent filings, and corporate formation and stock and equity structuring.” Mailer
companies allegedly “use publicly available trademark filer information to send
targeted ‘solicitations’ to…trademark applicants.” The “ ‘solicitations’ are
constructed to [deceptively] make the trademark applicant believe that an
official U.S. government agency or the [United States Patent & Trademark
Office (“USPTO”) ] itself is sending a letter to them, raising fear among the
unsuspecting public that they must pay large amounts of money or forfeit
trademark rights.” These “Mailer Defendants” provide no real services and
“result in no value to trademark owners.”
Defendant is allegedly one
such “Mailer Defendant,” listing a Washington, D.C. address for its business,
but actually located in Hungary. It allegedly sends out unsolicited offers and
directs recipients to pay a $980 registration fee to have the recipients’
trademark (worthlessly) listed in its publication. The unsolicited offer is
“deliberately constructed to deceive recipients into thinking the unsolicited
offer is a bill so the recipient will send a check as a payment for something
they think is already owed to protect a trademark.” Legalforce allegedly “has
received over 40 unsolicited offers from [Defendant] in the past year, directed
to both RACP’s clients and to individuals employed by RAPC.” It alleged that “significant
business” was deceptively diverted, and that its business reputation was harmed
because it “received inquiries from its clients confused about the unsolicited
actions by the Mailer Defendants and worried that [Plaintiff’s] services to the
clients were somehow deficient.” Legalforce alleged that it spent “valuable
time and expenses to investigate the facts to appropriately advise its
Legalforce sued for violation
of the Lanham Act, California’s UCL and FAL, and intentional interference with
prospective economic advantage. Although the court found no personal
jurisdiction over the defendant, it did find Article III standing/Lexmark
standing. The defendant conflated the two.
Under Lexmark,
“allegations of lost sales and damage to…business reputation” are sufficient
to “give [a plaintiff] standing under Article III to press [a]
false-advertising claim.” Legalforce’s allegations, while “admittedly general,”
sufficiently alleged damage to its business reputation caused by the alleged false

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More Kona coffee: false designation claims under 43(a)(1)(A), but not (B), can target retailers

Two more opinions here, one about the meaning of “origin” in 43(a)(1)(A) and one about the liability of retailers for false advertising and false designation of origin.

Corker v. Costco Wholesale Corp., No. C19-0290RSL, 2019 WL
5895430 (W.D. Wash. Nov. 12, 2019)

The difference in treatment of claims against retailers of third party products under trademark and false advertising (43(a)(1)(A) and (B), respectively) appears to have hardened: here, plaintifs get to use (A) to bring their false designation of geographic origin claim against the retailers, but not (B), although the opinion is less than clear about the interaction between working parts.

Plaintiffs, coffee farmers in the Kona District of the Big
Island of Hawaii, alleged that the moving defendants sell coffee products that
falsely designate the geographic origin of the coffee as “Kona.”

Kroger’s house blend

Magnum Exotics “Kona blend”

The retailer defendants challenged the plausibility of the
Lanham Act claims and argued that Section 230 precluded claims against
The retailers argued that it was the product producers who
made a false statement of fact, not them, and that putting the third-party
vendor’s product on their shelves or websites wasn’t a false statement of fact.
 The court agreed, finding that “the
policy implications of imposing liability for false advertising on all downstream
participants in a retail chain are troubling.” 
Quoting another court: “Defendants undoubtedly sell many products—should
they be responsible for scrutinizing and determining the veracity of every
claim on every product label in their stores simply because they sell the
product?” The answer is no, even though it’s yes for trademark and copyright
infringement, which are not obviously easier to detect–indeed, given the result on 43(a)(1)(A), it appears the very same claims get to proceed against the retailers as false association claims despite the policing difficulties thereby created.  
Without clarifying whether it was discussing direct or
secondary liability, the court suggested that retailers could be liable for
false advertising if they “control[] or participate[] in the creation of the
offending label or create[] additional marketing materials for a product that
amplify the manufacturer’s misrepresentations.” 
That sounds direct; what about contributory liability?  Regardless, “false advertising claims against
the retailer defendants, acting solely in their roles as retailers, may not
proceed.”  However, claims based on
private label coffees from Cost Plus and Kroger could continue.
False association: plausibly pled (apparently also against the retailers as retailers of third party products), because “origin” has
always been understood to include geographic origin, even if it also expanded
over time.  (The court rejected Sugai
Prods., Inc. v. Kona Kai Farms, Inc., 1997 WL 824022 (D. Haw. Nov. 19, 1997), to
the extent that it held that a false association of origin claim under 43(a)(1)(A)
protects only against misrepresentations as to the identify of a product’s manufacturer.)
No protectable ownership interest in a mark is required under §43(a)(1)(A) where
the claim was based in false designation of geographic origin.
The claims were pled with sufficient particularity. For
example, plaintiffs alleged that Costco “sells a variety of deceptive coffee
products, including but not limited to Magnum Exotics.” Magnum Exotics products
were marked with the word Kona on the front of the packaging and allegedly used
deceptive taglines, slogans, and imagery that imply, falsely, that the coffee
in its “Kona” products originated in the Kona District; the plaintiff provided
examples of the offending text and images. 
The use of exemplar products didn’t “invalidate or make unclear the
allegation that Magnum Exotics products marked with the word Kona and sold by
Costco contain a false designation of origin.” That was enough information for
Costco to defend itself.  At one point,
plaintiffs alleged that “[s]ampling has shown that nearly every product labeled
‘Kona’ in [the supplier defendants’] product lines misrepresents the origin of
the coffee beans contained in the package.”
Defendants argued that plaintiffs were therefore not
challenging every product labeled “Kona” and they had no way of knowing which
products were at issue. But the immediately following allegations clarified
that plaintiffs were alleging a consistent practice of false designation of
even if a few Kona beans made their
way into an individual package. Given the scarcity of authentic Kona coffee (…
Kona coffee represents on 0.01% of the worldwide supply of coffee) and the high
profitability of marketing commodity coffee as if it were Kona coffee, it is no
surprise that any defendant that is willing to engage in such deceptive
practices would consistently practice their deception across all product lines.
An unscrupulous merchant selling counterfeit Rolex watches on a street corner
tends not to mix a real Rolex into inventory every once in a while.
(Side note: Now that’s complaint drafting.)
CDA immunity: The relevance of CDA immunity was unclear. It
doesn’t apply to goods stocked and sold in a physical store, even though the
defendants have websites, and it also doesn’t apply to private label products
sold on those sites (as to which the retailers are the providers of the accused
content).  Plaintiffs also argued that,
once an online sale is made, physical-world acts to deliver the accused
products to the purchaser wouldn’t be covered by the CDA, and defendants didn’t
respond to that argument. The court was apparently willing to accept
plaintiffs’ argument, which should deeply worry many online retailers, but the court also said in its
concluding paragraph that the claim against the retailers was “barred by the
CDA to the extent their conduct is limited to making a product available for
sale on a website.” Because even the false designation claim under 43(a)(1)(A) isn’t an IP claim, I guess that means that sales of the non-house brand stuff on the websites are immunized.  (To the extent that
the retailer defendants are advertising the other products on their websites,
aren’t they doing more than making them available for sale? The other advertising content on the
page is separate from that which is on the physical products themselves, and
may or may not come from other sources—thus it could trigger secondary or even direct liability for false advertising, at least in the
absence of the CDA.)
Corker v. Costco Wholesale Corp., No. C19-0290RSL, 2019 WL
5893291 (W.D. Wash. Nov. 12, 2019)
Same facts. These supplier defendants argued that, whatever
the original interpretation of “origin” was, it no longer applies. Prior to
1989, Section 43(a) of the Lanham Act prohibited “false designation[s] of
origin” generally. In 1989, Congress split 43(a) into two separate subsections,
“the first of which covers false designations of origin that cause consumer
confusion and the second of which covers false designations of geographic
origin in advertising.” The suppliers argued that, because a misrepresentation
of “geographical origin” in advertising or promotion is specifically prohibited
by Section 43(a)(1)(B), a claim based on false designations of geographical
origin cannot be brought under Section 43(a)(1)(A) even there’s a likelihood of
consumer confusion.
The court disagreed. The more general term “origin” can
still cover claims based on geography. 
(Sure, but at heart this is a false advertising claim, and probably
should have the false advertising requirements—commercial advertising/promotion
and materiality.  That said, those seem easily
satisfied by the labels here, especially given the prominence of the “Kona”
claim.)  Subsequent cases have continued
to talk about “origin” as encompassing geographic origin. (Citing Dastar
and Two Pesos as well as Kehoe Component Sales, Inc. v. Best Lighting
Prods., Inc., 796 F.3d 576, 587 (6th Cir. 2015) (“As Dastar makes plain, an
entity makes a false designation of origin sufficient to support a reverse
passing off claim [under Section 43(a)(1)(A) ] only where it falsely represents
the product’s geographic origin or represents that it has manufactured the
tangible product that is sold in the marketplace when it did not in fact do
so.”).)   Sugai Prods., Inc. v. Kona Kai
Farms, Inc., 1997 WL 824022, at * 11 (D. Haw. Nov. 19, 1997), held that only
(a)(1)(B) applied to false designation of geographic origin, but the court here

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Pot site’s negative report on CBD from hops wasn’t commercial speech

Peak Health Center v. Dorfman, 2019 WL 5893188, No.
19-cv-04145-VKD (N.D. Cal. Nov. 12, 2019)
Peak allegedly sells plant-based pharmaceuticals and
supplements, including an exclusive strain of Humulus yunnanensis, a hops
plant, as a source of cannabidiol (CBD). This source of CBD is potentially
valuable given the constraints on hemp and cannabis, the typical sources. At
the time of the relevant events, Dorfman was the editor-in-chief and a writer
for PotNetwork, which distributes cannabis and hemp products, including CBD,
and also publishes industry news on its website.
In 2019, Dorfman contacted a Peak principal to ask questions
for an article he was writing; his attitude was allegedly disdainful. Peak
allegedly provided documents proving that Peak’s CBD came from the hops plants,
documents showing lab results supporting its claims, and patent filings for
related inventions.  Dorfman published an
article titled “A PotNetwork News investigative report: Bomi Joseph’s
‘hops-derived’ CBD was a world-changing cannabis alternative fought over by
Isodiol and Medical Marijuana, Inc. But he lied about his discovery—and his
identity.” The article asserts that Peak’s hops variant does not exist, that
the alleged discoverer’s research publications about Humulus kriya and CBD were
plagiarized from others’ legitimate peer-reviewed publications, that he is a
convicted felon who served prison time for defrauding various banks of $20
million in the early 2000s, and that he pled guilty in January 2019 to using a
false name on a passport application. It allegedly defamed him by stating that  “This time around [Mr. Joseph] may very well
have stolen from little old ladies, or the sick and injured—from anyone who
purchased ImmunAg or Real Scientific Humulus Oil or one of its derivatives in
hopes of curing some pain.” So too for quoting Dr. Volker Christoffel, one of
the people whose work Mr. Joseph allegedly plagiarized, e.g., “ ‘The whole
story with CBD from hop is insane,’ Dr. Christoffel told PotNetwork via email.
‘By the phylogenetic relatedness it MIGHT be possible, that some hop varieties
may have genes and express i.e., form cannabinoids—the biochemical pathways are
not so different and there is a theoretical possibility I would not exclude a
priori. BUT these are definitively only traces.’ ” This was allegedly reckless
because Christoffel never performed or reviewed chemical analysis of Peak’s
CBD. And the article failed to disclose that Christoffel was a managing
director of a competing cannabis pharmaco, not an independent expert.
Peak sued Dorfman for (1) trade libel; (2) intentional
interference with prospective economic advantage; (3) negligent interference
with prospective economic advantage; (4) unfair competition under the Lanham
Act; and (5) unfair competition under California Business and Professions Code
§ 17200 et seq.  It alleged harm to its
reputation and lost business opportunities worth at least $10 million.
Trade libel, intentional and negligent interference with
prospective economic advantage: These all require pleading special damages. A
plaintiff must “identify particular customers and transactions of which it was
deprived.” Peak did not.
Lanham Act: No false association claim, obviously, and this
wasn’t false advertising because the article wasn’t “commercial advertising or
promotion” because it wasn’t commercial speech. On its face, the article didn’t
look like an ad; it purported to be an “investigative report.”  It didn’t have anything that plausibly
promoted PotNetwork’s own products, or anyone else’s.  Allegations of a competitive relationship between
Peak and PotHealth weren’t sufficient.  I
am nervous about this result but see why the court here reached it; query
whether allegations that the news reported on defendant’s site was consistently
biased against competitors and thus worked as a disguised ad for defendant
would have changed anything.
First Amendment standards: The general tenor of the article
was fact-like: it described itself as an “investigative report” “based on an
in-depth review of Mr. Joseph’s research, a trove of confidential documents,
and interviews with people familiar with the events….” There was, however, figurative
or hyperbolic language throughout the article. Defendant described one of Mr.
Joseph’s purported collaborators, Donish Cushing, as “a ghost,” because he does
not appear in social media or Internet searches, and because “it’s hard to find
anyone who has met the man.” The Christoffel quotes also included colorful
language: “This is total bullshit”; “The whole story with CBD from hop is
insane”; etc.  Use of “figurative and
hyperbolic language” weighed in favor of First Amendment protection. 
Some of the statements in the article were susceptible of
factual proof: specifically, whether the CBD in Peak Health’s products comes
from a hops plant, or specifically a hops plant called Humulus kriya. Dorfman
argued that his statements were protected opinion based on fully disclosed
facts, but it was the truth of those facts that was at issue. “Dorfman
disclosed the facts on which he based his assertion that Peak Health’s hops-derived
CBD is a sham: Mr. Joseph’s history of plagiarism, attempts to assert new
identities, criminal fraud record, and purchases of large quantities of CBD
despite allegedly possessing the ability to produce that CBD from hops, as well
as statements from scientists concluding that hops-derived CBD is
unsubstantiated and not credible.” Nonetheless, his conclusion about the lack
of hops-derived CBD wasn’t a statement of subjective opinion or interpretation;
it was “an assertion of fact based on other asserted facts.”
In addition, the complaint flunked Rule 9(b) because it
failed to allege why the challenged statements were false.  With respect to the Christoffel statements,
Peak alleged only that the statements were unreliable because he didn’t test
Peak’s products himself and because he’s involved with a competing business,
but Peak didn’t plead facts from which it could be inferred that the CBD in its
products came from a specific hops plant. At most, it alleged that its public
relations agency provided “proof” of its CBD-related claims to Dorfman, but the
complaint didn’t explain why the statements were false.
Peak could, in theory, amend its complaint to remedy these
deficiencies as to the falsifiable statements, including the failure to plead
special damages and the failure to plead commercial advertising/promotion.
Anti-SLAPP motion: the Ninth Circuit has cautioned against
the application of procedural state laws if such application “would result in a
direct collision with a Federal Rule of Civil Procedure.” Thus, “granting a
defendant’s anti-SLAPP motion to strike a plaintiff’s initial complaint without
granting the plaintiff leave to amend would directly collide with Fed. R. Civ.
P. 15(a)’s policy favoring liberal amendment.” Dorfman could renew his motion
if Peak included amended state law claims in its second amended complaint (or,
apparently, if the time for pleadings passed or he otherwise prevailed).

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right of publicity question of the day, RBG edition

Right of publicity question of the day: leopard
print shirt made of Ruth Bader Ginsburg portraits
. Discuss.

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Colorado labeling doesn’t dispel potential falsity of “Kona” for coffee

Corker v. Costco Wholesale Corp., 2019 WL 5887340, No.
C19-0290RSL (W.D. Wash. Nov. 12, 2019)
Plaintiffs, coffee farmers in the Kona District of the Big
Island of Hawaii, alleged that defendant Boyer’s falsely designates the
geographic origin of its coffee products as “Kona,” prominently placing the
word Kona on the front of its packaging despite the fact that the product
contains little to no coffee from the Kona District. One of Boyer’s coffee
products is labeled “Café Kona” and another is labeled “Kona Blend.” In lab
tests, ratios of various metal (strontium to zinc, barium to nickel, cobalt to
zinc, and manganese to nickel) are allegedly well outside the range of that
which is found in authentic Kona coffee. Even if there were some Kona coffee in
Boyer’s products, it is allegedly not the meaningful percentage that a consumer
would expect based on the packaging.
Boyer’s argued that the Lanham Act false advertising claims should fail because
plaintiffs didn’t allege that that they, individually or as a group, have a
protectable trademark in the word Kona. But “false designation of origin,” even
before its expansion to cover unregistered trademarks, always covered geographic
Boyer’s then argued that the claims were implausible because
its packaging clearly showed that it was a Colorado company. But none of the
statements about the Colorado-ness of the company “dispels the notion that the
coffee roasted or crafted in Colorado was grown in the Kona district, a notion
that is arguably conveyed by the use of the otherwise gratuitous word ‘Kona’ in
the name of the product.” (Does anyone think, even with climate change, coffee roasted in Colorado is grown there?)
Finally, Boyer’s argued that the mere presence of a geographic
reference on its packaging cannot give rise to claim for false designation of
geographic origin. If, in context, the use of “Kona” was plausibly misleading, which
it was, the claim could proceed.  (Citing
Pernod Ricard USA, LLC v. Bacardi USA, Inc., 653 F.3d 241(3rd Cir. 2011)), which
rejected a claim based on “Havana Club” for rum that clearly, to the court,
also said it was from Puerto Rico).

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claims for ab exercise device going beyond FDA clearance are actionable

Loomis v. Slendertone Distrib., Inc., 2019 WL 5790136, No.
3:19-cv-854 – MMA (KSC) (S.D. Cal. Nov. 6, 2019)
Loomis brought the usual California claims based on ads for
the Flex Belt, a purported ab-exercise device. While denying standing for
injunctive relief and finding a bunch of the challenged claims to be puffery,
there was still enough to continue, and the court also rejected an FDA
preemption argument.
Preemption: Slendertone argued that the Flex Belt had been
FDA cleared [NB: not approved] “for Toning, Firming and Strengthening
the stomach muscles,” and thus the claims were preempted. States can adopt FDCA
rules for their own law, but parallel state “consumer protection laws, such as
the UCL, FAL, and CRLA, are nonetheless preempted if they seek to impose
requirements that contravene the requirements set forth by federal law.” But
Loomis didn’t challenge whether the FDA should have cleared the Flex Belt or
whether the specific FDA-cleared statement is misleading, and this was a case
involving a Class II medical device, not FDA approval.
Actionable statements: because the FDA cleared the Flex Belt
as an EMS device for toning, firming, and strengthening abdominal muscles, “such
representations cannot be deceptive to a reasonable person.” But it would be
deceptive to market an EMS device as cleared by the FDA “for weight loss, girth
reduction, or for obtaining ‘rock hard’ abs.” Much of the advertising Loomis
cited was puffery, such as the testimonials:
With my schedule I can’t do an ab
workout every day, but with The Flex Belt® I’ll put it on every day because I’m
doing things at the same time. So it’s really just being smart. It’s easy, I
wear it every day and my abs are there to show for it! My abs feel like I’ve
had the most amazing workout and I just wore The Flex Belt® around the house
for 30 minutes.
The Flex Belt® tightens, tones, and
strengthens my stomach without me even having to think about it. It has taken
my abs to a whole new level… it does all the work, and I get the results.
These statements were “highly subjective to the individuals
giving the statements,” although I think they’re misleading. There was nothing
actionable about the claims on Amazon to “stimulate all your major stomach
muscles at the same time providing you with the perfect abdominal contraction
….You don’t have to worry about your form or come up with the time to get it
done.” That didn’t claim that the Flex belt alone will result in weight loss,
girth reduction, or an attractive appearance. [I don’t think it’s “alone”
that’s the problem. I think the problem is that the Flex belt doesn’t produce a
marginal effect on any of these, and the implication is that it
does.]  “GREAT ABS START HERE,” “Maximum
Core Strength,” and “Ultimate Toning Technology” were also puffery.  [But if it doesn’t work at all, then it’s not
exaggeration, it’s just … not true.]
In the ads, “any reference to fat loss is accompanied by
disclaiming language that the Flex Belt is insufficient to achieve weight loss
and that a more attractive abdominal area requires proper diet and exercise,” e.g.,
the “Flex Belt does not remove inches of fat but it tones, tightens, and
strengthens your stomach muscles. Using The Flex Belt in conjunction with your
dedication to Diet, Nutrition and Exercise can help you achieve your goals of a
more attractive stomach as well!”
Still, there were specific statements, in context, that were
plausibly deceptive to a reasonable person. 
E.g., “Who Should Use the Flex Belt®?…Anyone that wants more
attractive abs, regardless of current fitness levels”; “With The Flex Belt®, it
doesn’t matter what your current exercise status is because there will always
be time to build firmer, stronger abs. This product is perfect for … anyone
that wants more attractive abs, regardless of current fitness levels”; and
touting the product “[f]or those looking for a convenient way to tone,
strengthen and flatten the abdominal area.”
These claims made it “probable that a significant portion of
the general consuming public or of targeted consumers, acting reasonably in the
circumstances, could be misled” to believe the Flex Belt could help consumers
achieve more attractive abdominal muscles. It was contradictory to make misleading
statements as to improved abdominal appearance while simultaneously disclaiming
that “The Flex Belt does not remove inches of fat.” In addition, although the
testimonials and pictures of six-pack abdominal muscles were puffery, they
“contribute[d] ‘to the deceptive context of the packaging as a whole.”
UCL unlawful and unfair claims also survived, as did claims
for breach of express warranty, despite a limited warranty addressing product
BY [Slendertone].”
Under California law, “[w]ords or conduct relevant to the
creation of an express warranty and words or conduct tending to negate or limit
warranty shall be construed wherever reasonable as consistent with each other.”
Limitation of warranties are allowed “only by means of [w]ords that clearly
communicate that a particular risk falls on the buyer.” Further, disclaimers or
modifications “must be strictly construed against the seller.” “Noting the
presumption of construing warranties as consistent with one another, the burden
against the seller, and the fact the limited warranty was included in the
packaging for the Flex Belt after Plaintiff purchased it, the Court finds that
the limited warranty does not upset Plaintiff’s alleged express warranty cause
of action.”

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