False Advertising

[tranquility]

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.

If so, the OP should do a quick Google Search for "The Keys Salt Scrub" and drop a dime to both parties and let them fight it out. I'd think there is FAR more of a chance there is an IP issue between the OP's nemesis and those that don't add "Genuine" to their claim than there is some false advertising claim.

 

[LeeHarveyBlotto]

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.

Assuming the competitor is larger than OP and wife, depending on how hard they pushed, my advice to the "Genuine" people would be to "lawyer them to death".

 

[OHRoadwarrior]

Not misinterpreting. Recognizing what I believe to be a legal and well thought out brand marketing concept. In fact, my neighbors business uses the word in its name also in a similar manner to convey the same outcome.

 

[quincy]

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.

There is a difference between claiming a product is made from genuine salts and claiming a product is the genuine salt scrub. It is a subtle difference, and perhaps one that would not make a difference in a consumer's decision to purchase one product over the other, but there is definitely a difference.

I agree that a consumer survey would be necessary to determine the "sophistication" of salt scrub purchasers. The sophistication of a purchaser is one of several factors a court will look at when deciding whether there is a likely to be consumer confusion - and actual evidence of consumer confusion (evidence that a reasonably astute consumer is confused by the slogan) would be a factor in the other scrub companies' favor.

I continue to believe keyman21 should have this reviewed by a Florida attorney. The attorney can take a look at the salt scrub market and how these products are being presented to the public and can go from there. I do not think that a cease and desist letter, that demands the removal of the word "the" from advertising, is a wrong way to go.

 

[OHRoadwarrior]

The cost to try and make the point can be very high if it goes to court as OP cannot prove specific damages caused by it. Spending thousands on a weak case would be better used to establish your own brand recognition if your business is so small it appears to be locally based.

 

[Proserpina]

There is a difference between claiming a product is made from genuine salts and claiming a product is the genuine salt scrub. It is a subtle difference, and perhaps one that would not make a difference in a consumer's decision to purchase one product over the other, but there is definitely a difference.

I agree that a consumer survey would be necessary to determine the "sophistication" of salt scrub purchasers. The sophistication of a purchaser is one of several factors a court will look at when deciding whether there is a likely to be consumer confusion - and actual evidence of consumer confusion (evidence that a reasonably astute consumer is confused by the slogan) would be a factor in the other scrub companies' favor.

I continue to believe keyman21 should have this reviewed by a Florida attorney. The attorney can take a look at the salt scrub market and how these products are being presented to the public and can go from there. I do not think that a cease and desist letter, that demands the removal of the word "the" from advertising, is a wrong way to go.

Obviously I can't speak for every lover of salt scrubs, but there's so much white label nonsense going on that most consumers are attracted to lower price for the most part. With that said, some will insist that John SaltyOne's brand is of a much lower quality than FinickyFred's brand when in fact they're both made by the same company in the same factory and the only different is whose name is on the label.

Gotta love it.

 

[tranquility]

Obviously I can't speak for every lover of salt scrubs, but there's so much white label nonsense going on that most consumers are attracted to lower price for the most part. With that said, some will insist that John SaltyOne's brand is of a much lower quality than FinickyFred's brand when in fact they're both made by the same company in the same factory and the only different is whose name is on the label.

Gotta love it.

For some reason, I'm thinking we're not talking about "factory" level scrubs here. More like batch work. Artisan batch work, of course.

I mean really, what is a scrub? Something coarse to exfoliate in some way. (Salt, sugar, plastic beads, nut husks, etc.) A fat to lubricate and carry the scrub to moisturize and limit damage. Some essential oils to make it stink pretty and a "magic" special ingredient to...um...do magic. (Aloe vera, vitamin E, a bioceutical of some sort.) As a young man, when I cared how I looked but did not have a bunch of money, I remember making my own sugar scrub. Sugar, olive oil and mint. Simple, easy and would clean the heck out of my face. I found I had to do it before a shower where a lot of soap was used or I would feel greasy all day. Your mileage may vary.

 

[quincy]

Obviously I can't speak for every lover of salt scrubs, but there's so much white label nonsense going on that most consumers are attracted to lower price for the most part. With that said, some will insist that John SaltyOne's brand is of a much lower quality than FinickyFred's brand when in fact they're both made by the same company in the same factory and the only different is whose name is on the label.

Gotta love it.

Well, I admit I am at somewhat of a disadvantage in not having a clue what a salt scrub is , but I do know that even a small business must worry the details if it hopes to be successful.

While the concern keyman21 has might not seem like a major one to most of you, having a company make deceptive claims about their products that discount the quality of your products, if only by implication, can hurt your small company financially.

I agree with Proserpina that cost plays a factor for most consumers and many consumers might not give a hoot if a product is made from genuine salts if the price is low. And I agree that small companies must choose their battles wisely. One must always balance the pros and cons of any legal action taken even if the action is just to write a cease and desist letter.

However, and once again, I think that keyman21 and the other small salt scrub companies have a reason to be concerned about the Keys Salt Scrubs slogan. They could benefit by having an attorney in Florida review their concerns.



(You might want to look up the "Who Dat?" slogan fight small businesses in Louisiana had against the NFL - small businesses can have a powerful voice)

 

[tranquility]

Well, I admit I am at somewhat of a disadvantage in not having a clue what a salt scrub is

Dude, find out. It will satisfy both logic and the mirror.

but I do know that even a small business must worry the details if it hopes to be successful.

They must care even more. A big business who has to pay $400 to an attorney is just a line on a sheet. To a small business? Maybe telephone expense is better spent.

While the concern keyman21 has might not seem like a major one to most of you, having a company make deceptive claims about their products that discount the quality of your products, if only by implication, can hurt your small company financially.

NO ONE HAS DISMISSED HOW THE CLAIM COULD HURT THE OP. The issue is if it has hurt illegally. Yes, a good marketing strategy by an opponent will make the OP's wife's business less profitable. We all get that. Is the solution to try harder or to sue?

However, and once again, I think that keyman21 and the other small salt scrub companies have a reason to be concerned about the Keys Salt Scrubs slogan. They could benefit by having an attorney in Florida review their concerns.

Sure, why not. I assume most IP attorneys in Florida give a free first consult. Right? By the by, what of the search I suggested. Should the OP sue them too?

(You might want to look up the "Who Dat?" slogan fight small businesses in Louisiana had against the NFL - small businesses can have a powerful voice)

You can do it little bit. A little bit became President. Maybe you can too.

 

[quincy]

Dude, find out. It will satisfy both logic and the mirror.

Dude? I have always preferred "Sir."

If you can access the September/October 1999 issue of the Journal of Advertising Research, there is an article by Michael Barone, et al, titled, "Enhancing the detection of misleading comparative advertising." It is informative and worth a read.

As a note: "The Keys Salt Scrub" is a federally registered trademark (as of 2014) but both salt and scrub are disclaimed, and the slogan that is of concern to keyman21 has not been registered.

 

[tranquility]

Dude? I have always preferred "Sir."

If you can access the September/October 1999 issue of the Journal of Advertising Research, there is an article by Michael Barone, et al, titled, "Enhancing the detection of misleading comparative advertising." It is informative and worth a read.

As a note: "The Keys Salt Scrub" is a federally registered trademark (as of 2014) but both salt and scrub are disclaimed, and the slogan that is of concern to keyman21 has not been registered.

Sir, do the rub. It hurts a bit, especially the first few days. But, once you heal, your skin will be marvelous.

As to the political pundit's non-legal article, I can supply at least a couple more that are a bit...more legally substantive.

http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=4325&context=lcp

http://cardozolawreview.com/Joomla1.5/content/30-1/SAMUELSON.FINAL.VERSION.pdf

Yes the quoted portion is registered. Does that not give you a problem in relation to the "the"? You are arguing illegal advertising. The genuine key scrub is illegally different from genuine key scrub? Doesn't the fact a major player is using "the" without a problem cause you discomfort to your opinion?

 

[keyman21]

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?

Salt Scrub is big business in the keys and the tourists can't get enough of it. That company is trying to edge all us little guys out like my wife. There are a lot of us down here who make it and sell it and then there is them. So the question is not necessarily just about my wife and I persay but rather everyone who makes salt scrub and sells salt scrub down here. If we have a legitimate case we should have no trouble organizing the other artisan producers together to raise what we need to move forward.

 

[tranquility]

Salt Scrub is big business in the keys and the tourists can't get enough of it. That company is trying to edge all us little guys out like my wife. There are a lot of us down here who make it and sell it and then there is them. So the question is not necessarily just about my wife and I persay but rather everyone who makes salt scrub and sells salt scrub down here. If we have a legitimate case we should have no trouble organizing the other artisan producers together to raise what we need to move forward.

What do you think of "The Keys Salt Scrub"?

 

[keyman21]

What do you think of "The Keys Salt Scrub"?

We have no problem with their name as that is their name and there are at least 5 other salt scrub businesses down here with some name similar to Keys Salt Scrub. . There are two I know of named "Florida Keys Salt Scrub", one named Islamorada Salt Scrub, and even a Key West Salt Scrub!

We only take issue with them implying to everyone that they are "THE" genuine one, and the rest of us are not. That is probably why they came up with the slogan to begin with. Intentionally trying to make people think they are the real deals when there are in fact many of us.

 

[quincy]

Salt Scrub is big business in the keys and the tourists can't get enough of it. That company is trying to edge all us little guys out like my wife. There are a lot of us down here who make it and sell it and then there is them. So the question is not necessarily just about my wife and I persay but rather everyone who makes salt scrub and sells salt scrub down here. If we have a legitimate case we should have no trouble organizing the other artisan producers together to raise what we need to move forward.

I can't tell you if you have a legal action worth pursuing but I think the slogan is just iffy enough that a review by an attorney in your area could be smart - this especially if you know other salt scrub sellers selling genuine salt scrubs who are equally concerned by the advertising slogan. The slogan appears to me to convey a false impression which can be corrected easily with the elimination of the word "the."

That said, you have heard from many in this forum who disagree with my assessment and who believe it is better for you and your wife to devote all energy and money to your business and marketing of your product and ignore what The Keys Salt Scrub is doing to market its product. But you could always conduct your own limited consumer survey to see how consumers interpret the slogan. And it is ultimately up to you whether you want to go to the expense of seeing a Florida attorney for a personal review and professional opinion.

Good luck. Next time I am in Florida, I will have to try out a salt scrub.