Wednesday, May 02, 2012

A word means what I say it means?

As I found out from The Daily Show, a NY bagel maker is challenging Dunkin Donuts new “artisanal” bagels as false advertising.  This raises the classic question, familiar from debates over GIs in America, of whether a widely misused term can be so misused as to change its meaning.  (As the quite good Forbes story linked above notes, cf. Domino’s Artisan Pizzas, Starbucks’ Artisan Breakfast Sandwiches, Tostitos Artisan Recipes Tortilla Chips, and Burger King’s artisan bun.)  If artisanal is a mere synonym for good, as the Dunkin Donuts ad would have it, then the word is mere puffery.  If it means handmade in small batches according to traditional techniques, not so much.  So far, the NY bagel maker is complaining to the BBB, the FTC, and the NY AG; while something of a long shot, this might be the best overall tactic, especially given the resulting publicity.  My bet is that a court is likely to find that widespread advertising could make the term ambiguous, requiring an expensive consumer survey on meaning under the Lanham Act—though note that state laws do not generally have the false/misleading divide, so a different result is possible under GBL 349.

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