Florczak v. Oberriter, -- N.Y.S.2d --, 2008 WL 1821834 (N.Y.A.D. 3 Dept.)
The parties compete in making and selling baseball bats near the Village of Cooperstown. Plaintiff (d/b/a Where It All Began) alleged that defendant (d/b/a Cooperstown Bat Co.) engaged in false advertising of its commemorative baseball bats in Cooperstown, falsely claiming to “manufacture” and “make” baseball bats and to make them in Cooperstown (“where it all began”), when in fact the bats are mostly made in defendant’s factory two miles outside Cooperstown. Defendants used to make the bats in Cooperstown, but for the past eight years they’ve been processing and finishing blank wooden billets in nearby Fly Creek. Their retail store in Cooperstown has a basement workshop which does some engraving. Only about 5% of the bats defendants sell come from Fly Creek; the remaining 95% are produced from formed, wooden billets from a non-Cooperstown company.
The big problem was that plaintiff had no evidence that it had lost sales as a result of the false advertising. It couldn’t just claim damages in the amount of bats defendant sold. Nor did plaintiff prove that the advertising would be deceptive or misleading to a reasonable consumer. The ads indicated that the Cooperstown facility is the retail store, while there’s also a factory in Fly Creek, e.g. “[d]rop by [the] store at 118 Main Street in Cooperstown, or just over the hill at their Fly Creek factory, to smell the wood chips and see what they do.” Moreover, the provenance of the wooden billets isn’t key: “the fact is” that the billets “become commemorative baseball bats as a result of the work performed on them by defendants.” What matters is the coating, staining, engraving, and placement of decals.
Plaintiff’s site advertises itself as selling “the Only Bats made in Cooperstown.” If defendant’s claim isn’t false, is plaintiff’s claim then false?