False Advertising

[quincy]

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?

If the other salt scrub companies believe "the genuine" slogan could harm their sales, even if there are as yet no demonstrable damages, a suit can still result in the company being ordered to stop using the slogan - this to prevent the harm that might come from consumer confusion. There just might not be an award of monetary damages that makes a suit financially feasible.

That is why I suggest a cease and desist letter. A cease and desist letter potentially could be sent representing all of the companies affected by the misleading advertising claim. The cost would be minimal (certainly as compared to a lawsuit) and it could be effective.

At any rate, a personal review by an IP attorney in keyman's area could be smart.

 

[LeeHarveyBlotto]

I don't disagree with a word you're saying, I'm just trying to shift OP's first thoughts away from "victim" and toward "businessperson". If the name being used rubs the OP and his wife the wrong way, but has had no measurable effect on the business, "get over it" is pretty good advice as well, IMO.

 

[tranquility]

Can I sue Mentos for claiming they are "The" freshmaker?

Ideas off the internet edit:

How about other companies:

"The" ultimate driving machine.

"The" quicker picker upper.

"The" world's favorite (Excuse me, "favourite") airline.

"The" antidote for civilization.

"The" pause that refreshes.

"The" Uncola.

"The" Happiest Place on Earth.

(Admittedly, suing the users of the above slogans would probably get one stomped into legal mush.)

 

[quincy]

Can I sue Mentos for claiming they are "The" freshmaker?

Ideas off the internet edit:

How about other companies:

"The" ultimate driving machine.

"The" quicker picker upper.

"The" world's favorite (Excuse me, "favourite") airline.

"The" antidote for civilization.

"The" pause that refreshes.

"The" Uncola.

"The" Happiest Place on Earth.

(Admittedly, suing the users of the above slogans would probably get one stomped into legal mush.)

There is a difference between making claims that consumers can or could take seriously and claims that consumers understand to be hyperbole.

With the first, a consumer could make a purchasing decision based on the claim being true. With the other, a consumer understands the claim to be "puffery" - a claim that cannot be, or is not expected to be, proved true or false (e.g., "the world's greatest hamburger").

There was a thread that covered this pretty thoroughly not all that long ago. I will see if I can locate it and post back with a link.

 

[tranquility]

Let's look again.

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".

We have a company called "The Keys salt Scrub". I assume we have no problem with that. While I don't know of salt scrubs made in The Keys, I suppose there is some tradition of making it there. Now, they want to sell "The Genuine Keys Salt Scrubs". Let's say the actual company name is "Keys Salt Scrub". Do we have a problem with the slogan then?

 

[OHRoadwarrior]

What it says vs what it implies are entirely different. It is stating factually the are using genuine Keys Salt Scrub. It is a marketing tool. The use of natural key salt products in a formulation is not what they are assuring. The formula and consistency is what it refers to.

 

[quincy]

Let's look again.
We have a company called "The Keys salt Scrub". I assume we have no problem with that. While I don't know of salt scrubs made in The Keys, I suppose there is some tradition of making it there. Now, they want to sell "The Genuine Keys Salt Scrubs". Let's say the actual company name is "Keys Salt Scrub". Do we have a problem with the slogan then?

Keys Salt Scrub as a trademark is fine. It is even okay to say, "Keys Salt Scrub, a genuine salt scrub."

The problem comes solely from the use of the word "the" before the word "genuine." It implies that there is only one genuine salt scrub - and that is a false implication. Other salt scrubs are also genuine.

A company cannot make false or misleading claims. I agree with keyman21 that the advertising slogan is legally problematic.

 

[tranquility]

Keys Salt Scrub as a trademark is fine. It is even okay to say, "Keys Salt Scrub, a genuine salt scrub."

The problem comes solely from the use of the word "the" before the word "genuine." It implies that there is only one genuine salt scrub - and that is a false implication. Other salt scrubs are also genuine.

A company cannot make false or misleading claims. I agree with keyman21 that the advertising slogan is legally problematic.

So, the decision tree we're going down is "false by necessary implication"? Or, will the OP be needing a survey?

Historical edit:
It depends upon what the meaning of the word 'the' is.

(http://www.oxforddictionaries.com/us/definition/american_english/the-genuine-article)

 

[OHRoadwarrior]

I do not see any incidence of false advertising because we are talking about all natural preparations. Not those with manufactured ingredients. They are simply trying to indicate their specific branding over other market competitors using similar formulas of all natural products. Otherwise, one looking for a salt scrub might mistake another salt scrub sign at a store, then stop, expecting to purchase their brand. When dealing with a product of 3 to 5 natural products, the specific mix is hard to distinguish in an effective manner which OP is discovering. Actually as I do not foresee the previous poster objecting, I would suggest instead of OP trying to find a successful lawsuit that is unlikely to exist IMO, they re-market their spouses formula under the name suggested earlier in the forum to distinguish it and make it appear special from competitors so they also develop brand identity.

 

[quincy]

So, the decision tree we're going down is "false by necessary implication"?

Deceptive or misleading advertising.

I think there is enough potential confusion generated by the phrase "the genuine salt scrub" to warrant a review by a Florida trademark attorney.

Here, in addition to the Lanham Act link provided earlier, is a link to Florida's statutes on false and deceptive advertising (you will have to do some scrolling and clicking, starting maybe with 817.40):

http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0800-0899/0817/0817.html

 

[OHRoadwarrior]

Again brand distinguishment does not rise to this level. How is OP going to prove a negative?


817.06 Misleading advertisements prohibited; penalty.—
(1) No person, persons, association, copartnership, or institution shall, with intent to offer or sell or in anywise dispose of merchandise, securities, certificates, diplomas, documents, or other credentials purporting to reflect proficiency in any trade, skill, profession, credits for academic achievement, service or anything offered by such person, persons, association, copartnership, corporation, or institution directly or indirectly, to the public, for sale or distribution or issuance, or with intent to increase the consumption or use thereof, or with intent to induce the public in any manner to enter into any obligation relating thereto, or to acquire title thereto, or any interest therein, or ownership thereof, knowingly or intentionally make, publish, disseminate, circulate or place before the public, or cause, directly or indirectly, to be made, published, disseminated or circulated or placed before the public in this state in a newspaper or other publication or in the form of a book, notice, handbill, poster, bill, circular, pamphlet or letter or in any other way, an advertisement of any sort regarding such certificate, diploma, document, credential, academic credits, merchandise, security, service or anything so offered to the public, which advertisement contains any assertion, representation or statement which is untrue, deceptive, or misleading.
(2) Any person, persons, association, copartnership, corporation, or institution found guilty of a violation of subsection (1) shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

 

[quincy]

Again brand distinguishment does not rise to this level. How is OP going to prove a negative?


817.06 Misleading advertisements prohibited; penalty.—
(1) No person, persons, association, copartnership, or institution shall, with intent to offer or sell or in anywise dispose of merchandise, securities, certificates, diplomas, documents, or other credentials purporting to reflect proficiency in any trade, skill, profession, credits for academic achievement, service or anything offered by such person, persons, association, copartnership, corporation, or institution directly or indirectly, to the public, for sale or distribution or issuance, or with intent to increase the consumption or use thereof, or with intent to induce the public in any manner to enter into any obligation relating thereto, or to acquire title thereto, or any interest therein, or ownership thereof, knowingly or intentionally make, publish, disseminate, circulate or place before the public, or cause, directly or indirectly, to be made, published, disseminated or circulated or placed before the public in this state in a newspaper or other publication or in the form of a book, notice, handbill, poster, bill, circular, pamphlet or letter or in any other way, an advertisement of any sort regarding such certificate, diploma, document, credential, academic credits, merchandise, security, service or anything so offered to the public, which advertisement contains any assertion, representation or statement which is untrue, deceptive, or misleading.
(2) Any person, persons, association, copartnership, corporation, or institution found guilty of a violation of subsection (1) shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

You are misunderstanding the problem, OHR. This is not about challenging the use of the word "genuine" and there is no negative that needs to be proved.

This is about challenging the use of the word "the," the use of which implies one product is the only genuine one. That implication is false.

 

[tranquility]

Deceptive or misleading advertising.

I think there is enough potential confusion generated by the phrase "the genuine salt scrub" to warrant a review by a Florida trademark attorney.

Here, in addition to the Lanham Act link provided earlier, is a link to Florida's statutes on false and deceptive advertising (you will have to do some scrolling and clicking, starting maybe with 817.40):

http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0800-0899/0817/0817.html

This is not going to be determined by the words of the statute but through the facts run through case law. If there is enough potential confusion, then the OP needs a survey. If the court is more modern and felt that the term is false by necessary implication, then the path is a bit easier. In either case, the salt scrub battle is going to be expensive and I doubt an attorney will take such a nebulous claim on unless the damage is great. It is never wrong to see an attorney to find out one's legal rights. I just don't see how this is a winner when something like "The Genuine Article" is defined by dictionary as "A person or thing considered to be an authentic and excellent example of their kind." When combined with the name of the company and the theory of puffery, good luck.

 

[Proserpina]

Keyman's wife may be opening a rather large can of worms if he insists she makes an issue of this.

It is so incredibly easy to essentially kill a very small business - ie, his wife's business - simply by forcing that little company to defend against A, B or C. She wouldn't be the first local cosmetics/health products maker/seller to go under for that reason.

Yes, I have experience in this and yes, I think LeeHarveyBlotto's suggestions are by far the safest.

Is it right when this happens? No, it's not "right". We need small businesses just as much (it could be argued, "moreso") as the big guys. But it happens every day and there does come a point where you have to decide whether it's more important to be right, or to be solvent.

 

[LeeHarveyBlotto]

It's actually going to be determined by the OP being told pursuing it will cost thousands of dollars, the OP will in turn decide that his hurt feelz (the only damages he has claimed to this point) aren't worth that, and will get with his wife and figure out in a business sense how to overcome this new business obstacle, if indeed the competitor has hurt them at all.