Court considers fake reviews not deceptive if they’re just puffery

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From Rebecca Tushnet’s 43(B)log:

The parties compete in the wine rack and wine cellar industry. Jive’s principal Jason Miller was formerly employed by WRA. Miller fell out with WRA’s owner, Jeffery Ogzewalla, and founded Vino Grotto.  Jive alleged various acts by WRA to harm its business, such as using Jive’s Vino Grotto and Home Collector Series marks in search engine ads to redirect consumers to WRA’s websites. WRA’s website allegedly copies content, images, trade dress, and look and feel from Jive’s website. WRA also allegedly contacted Jive’s vendors to persuade them not to work with Jive and made defamatory comments about Jive/Miller. WRA also allegedly posted false and deceptive positive reviews on the internet, and also forged photographs and address information on their website “to create the illusion of legitimacy and to hide the geographic origin of their goods.”

. . . .

As for the false reviews, the court rejected the Lanham Act {PG note – the Lanham Act is the primary Federal trademark statute in the US and prohibits a range of bad acts involving trademarks} claims because nothing in the content of the reviews left by WRA’s employees had been shown to be false and much was puffery.  E.g., an employee stating that he “found the 24 bottle table top wine rack fit neatly in that space, arrived quickly, and was very sturdy” could well have concluded these things.  [Arrived quickly, though?  More significantly, the court doesn’t give weight to the at least implicit misrepresentation—I would say necessary implication—that the review is from a true counterparty, rather than from a representative of the seller. The court treats only the statements in the reviews and not the reviews themselves as possible statements of fact, but “I am an independent customer” is also a factual statement and the FTC would surely say it had been conveyed by the reviews.]

Likewise, the court wasn’t impressed that WRA listed its mailing address as being in Bend, Oregon, even though it had Utah as the returns address. The court accepted that WRA had a presence in both states, and any confusion caused by altering an image of a building owned by WRA in Utah (as happened on the website) hadn’t caused any demonstrated injury.

. . . .

Trademark claims related to use of Jive’s marks in bidding for keyword ads didn’t show likely confusion, per 1-800-Contacts. The ad in the moving papers was clearly marked as an ad, and Jive’s website was directly below it.

Jive also made claims based on WRA’s sale of products under the Home Collector Series mark during a time in which, WRA contended, Jive was not using the mark. Some factors favored a finding of likely confusion, but there was no evidence of actual confusion, consumers’ degree of care, and strength of the mark (if any); WRA also ceased use of the mark, making injunctive relief unnecessary.

Tortious interference/defamation: not enough evidence of injury inflicted by improper means; many of the people to whom RWA spoke apparently kept doing business with Jive or ceased doing business with it for other reasons.  (Declarations from the identified customers here helped RWA a lot.)

Link to the rest at Rebecca Tushnet’s 43(B)log

PG notes the term, “puffery”, is legalese for a promotional statement or claim that expresses subjective rather than objective views, which no “reasonable person” would take literally. Puffery serves to “puff up” an exaggerated image of what is being described and is especially featured in testimonials. See Wikipedia-Puffery for more.

For the lay person, whenever a court describes the advertisements and promotions of one party as “puffery” or “mere puffery”, the complaining party is going to lose. “Mere” by itself is a reliable indicator that the party whose behavior is being described as “mere” is going to win on the particular legal point in question.

PG doesn’t believe he has ever read or heard the word, “puffery”, except in the context of a legal dispute. Centuries ago, PG worked for a very large advertising agency and can attest that puffery was not a term of art used by advertising professionals.

1 thought on “Court considers fake reviews not deceptive if they’re just puffery”

  1. Stricly tongue in cheek and offered respectfully for your edification, when a friend (who coincidentally happens also to be a former advertising professional) and I get together to smoke cigars and slather philosophy across the landscape, re the smoking of the cigars we say we are engaging in “puffery.” Submitted for your leisurely consideration.

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