ISO a False Advertising Verdict

Bridging the Gap links to a story reporting that First Act Inc. has prevailed against Brook Mays Music Co. in its false advertising claims. The only reported decision in the case, First Act, Inc. v. Brook Mays Music Co., 311 F. Supp. 2d 258 (D. Mass. 2004), concerns the propriety of long-arm jurisdiction over the Texas defendant, whose 60 ISO Alerts sent to individuals with Massachusetts addresses, as well as other contacts, were held sufficient for both statutory and constitutional purposes.

The parties make, among other things, musical instruments for children. The case concerns an "ISO Alert" sent out by Brook Mays; ISO stands for "instrument-shaped object," and the point of the alert, which was sent by email, was that First Act's instruments were not real instruments but only ISOs. (Dismissing an inferior product as an "instrument-shaped object" is a cute concept, by the way; kudos to whoever came up with it.) Despite the lawsuit, I have found what appears to be a copy or adapted version of the Alert here. It reads:

I.S.O. ALERT!

Instrument Shaped Object

Please be Alerted… there are a number of discount stores, Sam’s, Wal-Mart, Costco and Hastings, (to name a few) that are selling beginner "instruments", or "Instrument Shaped Objects" under the name brands of First Act Concert Series, SIMBA, Bluebird, Jean Baptiste and others.

After careful examination of these instruments, we have determined that they will not play for the long term (if even the short term)! The ISO’s break and parts are NOT available. The unfortunate fact is that the students that will be playing these instruments will likely not survive the first few months of band because of the design and quality. We are all aware that the dropout rate for beginning students is too high. Why would we, in good conscience, allow a student to begin on an instrument that dooms them for failure?

Because of the design and quality, or lack there of, we must respectfully decline to work on these or similar instruments. The liability is too great and we do not wish to be a part in the failure of a student in you schools instrumental music program.

We sincerely would like to suggest, that for the sake of the child’s future in music, these instruments be returned to the "big box" retailer for a refund and another option sought.

Given that the jury awarded $21 million in damages (including returns and lost goodwill), it seems that some customers followed the alert's advice.

I found a few other discussions of ISOs on the web, including one with a funny drawing of an ISO monster. Most of the statements I found came from band teachers and the like, who wouldn't count as First Act's competitors for purposes of Lanham Act liability. (Of course, there are other torts, though most would be subject to similar limitations.) Nonetheless, this discussion among band-loving types illustrates how laypeople can be concerned by the prospect of legal liability and understandably unaware of what actually might trigger such liability -- causing a real chill in their ability to discuss what instruments students ought to buy. I don't know if this story of a band leader being sued by a manufacturer for making a list of good and bad brands of instruments is true (the more likely scenario is a probably overreaching cease and desist letter), but it doesn't need to be in order to do harm. Sadly, most of the advice the band folks offer each other has little to do with the law on the books. Prefacing a statement with "in my opinion," for example, is probably pretty useless -- if I said "In my opinion, Diet Coke [my beverage of choice] is made with toxic chemicals," I've still made a representation of verifiable fact; if I said "Diet Coke sucks," no one needs a prefatory statement to understand that this is just what I think. Likewise, avoiding mention of brand names is not necessarily good enough if the class of "instruments sold in retail stores that feature clothing and other household equipment" is in practice made up of First Act's instruments, just as references to "the leading brand" in comparative advertising are understood to be direct comparisons. And this interview with First Act's CEO suggests that statements about musical instruments sold at big box retailers must refer to First Act, since it's almost alone in using that sales channel.