tag:blogger.com,1999:blog-5764290.post4563103118022458510..comments2024-03-18T07:00:59.438-04:00Comments on Rebecca Tushnet's 43(B)log: Beer thick as ... water?Unknownnoreply@blogger.comBlogger2125tag:blogger.com,1999:blog-5764290.post-68617140732681683362011-08-17T12:23:35.185-04:002011-08-17T12:23:35.185-04:00Rebecca,
Thanks for the link!
Jeremy,
Point tak...Rebecca,<br /><br />Thanks for the link!<br /><br />Jeremy,<br /><br />Point taken regarding puffery vs. materiality. <br /><br />As to your point on differentiaion, you (or Don) are really suggesting that all advertising is differentiating, even non-comparative statements of fact (e.g. "It's Toasted!" vs. "It's Toastier!"). Even scrupulously non-comparative advertising is all about playing to consumer appetites. Advertising alone provides competitive advantage, regardless of whether it impliedly or expressly makes a differentiating claim.Dan Kellyhttp://www.duetsblog.com/dan-kelly.htmlnoreply@blogger.comtag:blogger.com,1999:blog-5764290.post-52608120839323475452011-08-17T10:31:03.918-04:002011-08-17T10:31:03.918-04:00I don't know that I would consider this to be ...I don't know that I would consider this to be puffery under the Pizza Hut standard--either a claim so outlandish you'd be a fool to believe it, or a vague statement of general comparative superiority. I think materiality is the real issue here, but not from a puffery standpoint.<br /><br />I'm reminded of Don Draper's <a href="http://www.youtube.com/watch?v=yXTJhVBqWOM" rel="nofollow">Lucky Strike pitch</a> on the pilot episode of Mad Men. The point is not that you're making a <i>material</i> claim, it's that you're making <i>any</i> apparently differentiating claim (e.g., "It's Toasted!"), even if the particular differentiation is spurious and immaterial. Once the differentiation is made, you've captured competitive territory by a kind of first possession. As a matter of consumer psychology it's probably counterproductive for competitors to try to dispute it on the merits, and because it's immaterial it's not something you could easily bring a false advertising claim on, even relying on a misleading negative implication theory (a hard lift in any event). And yet the claim provides competitive advantage simply by virtue of the appearance of differentiation itself (or as Barton <a href="http://www.harvardlawreview.org/issues/123/february10/Article_6838.php" rel="nofollow">might say</a>, based on the commodification of distinction itself, even if that distinction is inherently evanescent and unstable).Jeremyhttps://www.blogger.com/profile/12830586949580925102noreply@blogger.com