Page 14 - Litigation

S14 | MONDAY, NOVEMBER 14, 2016 | Litigation
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Name
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tising claims unsupported. See Saint-Gobain Abrasives (Sandpaper, Sanding Sponge Blocks & Pads), NAD Case Report No. 4113 (October 2003) (express claims that 3X line of products worked 3X better unsubstantiated, but NAD declined to address the “hypothetical” ques- tion of whether the 3X name standing alone would be misleading); IGIA (Never Snore), NAD Case Report No. 3968 (November 2002) (although NAD found the advertiser’s clinical studies could not support claims that its prod- uct stopped snoring, “[w]ith respect to the product name, ‘NeverSnore,’ NAD determined that in the absence of any extrinsic evidence of customers being confused or misled, it would not require the advertiser to change the name of its product”).
Over time, NAD has re ned its “exception” to the extrinsic evidence rule, ostensibly in the case of product names which state an unsupported express claim. See Irwin Naturals (Green Tea Fat Burner), NAD Case Report No. 4725 (September 2007) (NAD found name “Green Tea Fat Burner” conveyed unsupport- ed message the product will “burn fat” and recommended name change); Bayer Health- care (One-A-Day All Day Energy), NAD Case Report No. 4684, (June 2007), aff’d, NARB Panel 145 (November 2007) (NAD conclud- ed “All-Day Energy” in the name necessarily constituted an express—and unsupported— durational (performance) claim); Vogue Inter- national (OGX Shampoos and Conditioners), NAD Case Report No. 5844 (May 2015) (name change recommended for ingredient-based product names which contained virtually none of the named extract, noting: “When a product name makes an express claim which conveys a message that is not supported, extrinsic evidence of consumer confusion is not required to recommend a product name
change”); Rust-Oleum (Painter’s Touch Ultra Cover 2x Spray Paint), NAD Case No. 5934 (February 2016), aff’d NARB September 2016 (product name constituted express and unsupported performance claim that Painter’s Touch Ultra Cover 2X delivered twice the coverage of competing brands). Extrinsic evidence of consumer deception was absent in each of these cases.
NAD’s explicit/implicit distinction mirrors Lanham Act practice, where courts grant
claims” for its cookware line unsupported and recommended discontinuance. Neverthe- less, NAD concluded that, in the absence of evidence demonstrating the name “Green- Pan” overstates the products’ environmen- tal bene ts, the advertiser could continue to use the GreenPan name. NAD came to a contrary conclusion in The Colgate Palmolive Company (Tom’s of Maine “Naturally Dr y” Antiperspirant), NAD Case No. 6001 (Sep- tember 2016) (Colgate has appealed NAD’s
absolute claim to stop sensitivity. Procter & Gamble Company (Crest Sensi-Stop Strips), NAD Case No. 5828 (April 2015). Nor did NAD require Maybelline to change its cosmetic product’s name, noting: “In the absence of extrinsic evidence demonstrating the name ‘Instant Age Rewind—The Eraser Treatment Makeup’ confuses consumers, NAD did not nd a basis to require a name change.” Maybelline New York (Instant Age Rewind Eraser Treatment Makeup), NAD Case No. 5241 (November 2010). The advertiser fell on the wrong side of hyperbole, however, in Hornell Brewing Company (Arizona Rx Memory Mind Elixir), NAD Report No. 3736 (March 2001). There, NAD concluded that “Rx Memory Mind Elixir” and “Rx Memory Herbal Tonic” did create an impression the beverage could improve or enhance memory and recommended these product names be discontinued.
In its most recent name-change decision,
Epson America (Epson EcoTank Supertank Printers), NAD Case No. XXX (October 2015), the challenger argued the name “EcoTank” for the advertiser’s printer line communicated an express claim that the product provided a general environmental bene t. NAD did not agree, nding use of the pre x “eco” at most created an implied claim; this despite noting that consumers associated “eco” with envi- ronmental bene t claims. Signi cantly, NAD found the advertising as a whole (as distinct from the name standing alone), conveyed a limited waste reduction claim which it found the advertiser adequately supported. Would NAD’s recommendation have differed if it found the advertiser unable to support a lim- ited environmental claim? Theoretically no, at least in the absence of reliable consumer perception evidence. But consider NeverS- nore. It is hard to believe if NAD reviewed the facts today, it wouldn’t recommend a name change—be the “NeverSnore” claim express, implied or hyperbole.
defect or unsafe condition” in equipment or machinery “[u]pon discovery” or actual notice of the structured defect or unsafe condition. Thus, the court held, §23-9.2(a)’s third sentence “mandates a distinct standard of conduct, rather than a general reiteration of common-law principles, and is precisely the type of ‘concrete speci cation’ that Ross requires.” Id. at 521 (citing Rizzuto v. L.A. Wenger Contr. Co., 91 N.Y.2d 340, 351 (1998)). Thus, Misicki held, plaintiff stated a cause of action under Labor Law §241(b) based on an alleged violation of 12 NYCRR 23-9.2(a). Id.
In sum, Misicki has adopted a sensible and practical rule in limiting invocation of the preservation requirement and its exception to a party in an adversary position in litigation.
Over time, NAD has re ned its “exception” to the extrinsic evidence rule, ostensibly in the case of product names which state an unsupported express claim.
injunctive relief without consumer perception surveys only for claims which are expressly false on their face. NAD does not, however, share a court’s general hesitance to interpret what implied claims ow from advertising; it hesitates only when the allegedly implied claim arguably ows from the product name. Although on its face a seemingly bright line, in practice advertisers and challengers often disagree as to whether a claim is express or implied. For name “claims” this is a particu- larly dif cult divide and NAD’s decisions dif- cult to predict.
In Cumberland Packing (Stevia in the Raw), NAD Case Report No. 5525 (November 2012), NAD found the name did not make an express claim to contain a single ingredient, Stevia. “Rather, ‘Stevia in the Raw’ is a registered trademark open to multiple interpretations including, most prominently, that the prod- uct is made with unprocessed stevia and is natural.” Hence, no name change. Similarly, but perhaps more surprisingly, in GreenPan (Thermolo11 Ceramic Coated Cookware), NAD Case No. 5519 (Oct. 2012), NAD found the advertiser’s “bold and pervasive ‘eco-friendly’
jurisdiction to NARB). There, NAD found the product name communicated an express and unsubstantiated claim that natural ingredients drove the product’s effectiveness. NAD noted that “while some product names are fanciful and contain hyperbole such that consum- ers understand the name itself is not a claim about product performance, other product names expressly tell consumers what to expect from the product.”
Many an advertiser has sought cover behind NAD’s consistent statement that it appreciates “the hyperbolic nature of product names,” but just what constitutes non-actionable hyperbole can be as elusive as the dividing line between express and implied claims. Unlike in Naturally Dry, NAD did not recommend a product name change for “OdorBlock” garbage bags, where prod- uct testing demonstrated the bags did not “block” all odors but demonstrated a statisti- cally signi cant reduction in odors. Pactive Corp. (Hefty OdorBlock Trash Bags), NAD Case Report No. 5105 (November 2009). Simi- larly, NAD disagreed with the challenger’s view that Crest’s Sensi-Stop Strips made an
Preservation
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the Court of Appeals determined that the first two sentences, which employ such general phrases as “good repair,” “proper operating condition,” “[s]uf cient inspec- tions,” and “adequate frequency,” are not suf ciently speci c to permit a Labor Law §241(6) recovery against a non-supervising owner or general contractor. Misicki, 2 N.Y.3d at 520. It concluded otherwise, however, as to the third sentence, holding that this sec- tion of the regulation imposes an af rmative duty on employers to “correct [] by neces- sary repairs or replacement” “any structural
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