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False Advertising

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keyman21

Junior Member
What is the name of your state (only U.S. law)?

Florida - My wife makes a salt scrub that she sells at markets in the Florida Keys. There is now a van driving around for a company called "The Keys salt Scrub" On their van it says "The Genuine Keys Salt Scrubs". Is this legal for them to say they are the genuine one thus implying my wife and everyone else down here that makes it is not? Do I have a legal case here? Thanks. Gene
 


tranquility

Senior Member
I don't see how it can be. If I have a product named "Florida tranquility widget washer" and drove around saying mine is the "Genuine Florida tranquility widget washer", it does not make the widget washer you make in Florida less genuine.
 

keyman21

Junior Member
I don't see how it can be. If I have a product named "Florida tranquility widget washer" and drove around saying mine is the "Genuine Florida tranquility widget washer", it does not make the widget washer you make in Florida less genuine.
I take issue with the use of "The" before the word "Genuine" implying it's the only one. If they simply said "Genuine Keys Salt Scrubs" then that would be different.
 

keyman21

Junior Member
Your wife needs to step up her marketing game. "The South's ULTIMATE Soft Scrubs", some crap like that.
Maybe but I just think that's not right and that company is showing they have no respect for anyone else but themselves. It's simply not right. I'm hoping someone tells me I have a case because we're not the only ones who make and sell salt scrub in the keys. Perhaps organize a class action if we have ground to stand on. Really all we would want if for them to take down that statement.
 

tranquility

Senior Member
Maybe but I just think that's not right and that company is showing they have no respect for anyone else but themselves. It's simply not right. I'm hoping someone tells me I have a case because we're not the only ones who make and sell salt scrub in the keys. Perhaps organize a class action if we have ground to stand on. Really all we would want if for them to take down that statement.
Why do want the genuine people to take it down when you are the authentic, original, honest, bona fide, 24 karat, salt scrub? (The longer you wait to market better, the more IP right they will have to some things.)
 

keyman21

Junior Member
Why do want the genuine people to take it down when you are the authentic, original, honest, bona fide, 24 karat, salt scrub? (The longer you wait to market better, the more IP right they will have to some things.)
Because they are not "The Genuine". There are many "Genuines" out there.
 

tranquility

Senior Member
Because they are not "The Genuine". There are many "Genuines" out there.
Exactly. There can be many authentic Florida salt scrubs. They are not making a false claim. They merely are making a brand where they might get some IP rights from using the term. Using something like genuine with a general crafted item should not be a problem. If one were to claim you are selling something that is genuine Rolex or something like that, then there is a problem if it is not.
 
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keyman21

Junior Member
Exactly. There can be many authentic Florida salt scrubs. They are not making a false claim. They merely are making a brand where they might get some IP rights from using the term. Using something like genuine with a general crafted item should not be a problem. If one were to claim you are selling something that is genuine Rolex or something like that, then there is a problem if it is not.
So I should have my wife come out and call our Keys Salt Scrub "The Genuine Keys Salt Scrub" and you're saying that will solve that?
 

tranquility

Senior Member
So I should have my wife come out and call our Keys Salt Scrub "The Genuine Keys Salt Scrub" and you're saying that will solve that?
When I say IP, I mean intellectual property. I'm sure quincy will join the fun at some point to explain it better, but by your competitor using that specific term in the way they are, they are starting to gain specific recognition in the marketplace. If YOU were to now use the exact same term, you might confuse people who wanted to buy the one put out by the other people. Now, as to if such a general use term can rise to the level of IP, that is a little harder--especially at this point where the market may already have others using the terms. That's why I mentioned some synonyms to "genuine" in my earlier post. Simply changing the word may or may not be enough to prevent confusion in the marketplace so that alone may or may not prevent liability on your part.
 

OHRoadwarrior

Senior Member
If you called yours, theirs, you would be infringing on their business marketing. You just need to be more creative with your name, than they are.
 

keyman21

Junior Member
If you really believe you're losing business because of this name, come up with a better one. It's called business.
The name seems very grand sweeping to me and misleading to the consumer. I would have thought to say something like that some kind of accreditation or validation would need to exist.
 

quincy

Senior Member
I take issue with the use of "The" before the word "Genuine" implying it's the only one. If they simply said "Genuine Keys Salt Scrubs" then that would be different.
I tend to agree with you, keyman21, that the word "the" before the word "genuine" is problematic.

The salt scrub company is making an advertising claim that could be considered false or, at the very least, misleading. Even when statements made are not entirely untrue or when statements made are accurate, they can still be deceptive.

The fact that a salt scrub is authentic or not artificial is a claim that can safely be made. The word "genuine" can be used. It is when one implies in their advertising that they are the ONLY one who has an authentic or not artificial salt scrub that consumer confusion can arise. If consumers are likely to be confused by the salt scrub company's slogan, or if consumers have been deceived into thinking that the company sells the only genuine salt scrub on the market, there could potentially be a civil action to consider.

Here is a link to 15 USC §1125, False designation of origin, false descriptions, and dilution forbidden: http://www.bitlaw.com/source/15usc/1125.html

That said, you will want to run all of the facts by an IP attorney in your area. The attorney can perhaps help you resolve the matter by drafting a letter to the salt scrub company, advising the company of the potential for consumer confusion, and request that their slogan remove the "the" from their ads. A civil action would be a costly alternative, and proving any damages suffered by your wife's company and the other salt scrub companies could be difficult. A likely outcome of any suit would be an injunction, which would prevent the company from using the slogan in its advertising - and this potentially could be more easily accomplished through a cease and desist letter.

Good luck.
 

LeeHarveyBlotto

Senior Member
The name seems very grand sweeping to me and misleading to the consumer. I would have thought to say something like that some kind of accreditation or validation would need to exist.
Time to get practical. How much money has your wife lost in sales due to their use of the "heinous" name? How much of that amount can you prove? How much are you willing to spend in legal fees to fight them?
 

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