This case raises interesting questions of falsity and
materiality. Ordinarily there’s no cause
of action just because a trademark owner changes the quality of its product,
but here the former producer for VS argues that the changed product is falsely
advertised by the unchanged packaging (and consumers’ expectations about the
product based on past experience). I
doubt that will go anywhere, not least because of the standing/noncompetitor
problem. If it did, I would also ask
about materiality: suppose the product in the picture and the product delivered
are in fact different in durability/quality, as alleged. Such differences are surely material—but
would consumers know about them? In
other words, would a court require evidence that consumers expected a certain
durability/quality based on the picture?
I ask because only one of the alleged differences seems really visible
in the pictures of the packaging shown in the complaint: the slipper heel
(which seems not to be present in this nearly
identical picture from VS’s site).
If VS could get it done, I’d suggest a survey with pictures of equally
sexy models showing off the new versions; assessing purchase intentions from
groups shown each package would likely be a defendant-favorable way of
measuring materiality.
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