First worm poop, now cow poop. As green marketers mature and compete with existing advertisers, we are seeing interesting false advertising cases arising out of various and sundry superiority/equivalence claims that go beyond the standard “environmentally friendly.”
Plaintiffs sell peat moss for home gardening and allege that peat moss is widely recognized to have unique beneficial properties as a growth medium. Organix markets a “peat moss replacement” or “renewable peat moss substitute” made from dairy manure. This product will allegedly reduce the ecological burden of dairy waste -- for discussion, see here – and the costs of peat harvesting – see Organix’s page here (along with related claims, including the nationalist benefits of using American dairy waste instead of Canadian peat).
Peat producers are unhappy about this, and filed suit specifically challenging the trademark: RePeat (which Organix has filed an application to register). On its general product page, Organix does not “mention that RePeat contains no peat, but consists of dairy manure.” (As noted above, the product-specific page is pretty clear about this, and the general page labels RePeat “the renewable peat moss substitute.”)
The gravamen of the false advertising claim is that the trademark will make people think that the product contains peat or peat moss. At this point, plaintiffs do not appear to be focusing on the claim that dairy manure is an acceptable substitute for peat moss. (They do allege confusion as to affiliation or sponsorship in that consumers will be confused about Organix’s connection with actual peat moss producers, but that’s pretty clearly hostage to the idea that RePeat contains peat moss.) There is a claim that RePeat will “damage the image” of true peat moss because RePeat is largely untested and has not been proven to share peat moss’s unique qualities. But this is not quite a falsity claim – for which plaintiffs would have the burden of disproving equivalence.
My quick take: the mark does seem, at a minimum, deceptively misdescriptive – despite the cleverness of the name, I’d assume it contained some sort of reprocessed peat; “re” is not a transparent prefix the way “mock” or “faux” or “imitation” might be. And given the alleged market reputation of peat, the name would be deceptive in that it would likely influence purchasing decisions. So I’d say it’s unregistrable. But whether in context it constitutes false advertising is a much closer question; “replacement” and “substitute” do seem to indicate pretty clearly that the product is not in fact peat. Whether prominent placement of these terms next to the mark can counteract the impression given by the mark itself will have to be determined.