Skydive Arizona, Inc. v. Quattrocchi, No. 10-16099 (9th
Cir. Mar. 12, 2012)
There’s much to say about this decision upholding a large
judgment against a defendant for using the
geographic-but-possessing-secondary-meaning mark “Skydive Arizona” in various
ways, but enough time has passed that I just want to comment on the following
passage:
Skydive Arizona’s decision to
proffer declaration testimony instead of consumer surveys to prove materiality
does not undermine its motion for partial summary judgment. Although a consumer
survey could also have proven materiality in this case, we decline to hold that
it was the only way to prove materiality. Indeed, as we held in Southland Sod,
consumer surveys tend to be most powerful when used in dealing with deceptive
advertising that is “literally true but misleading.” Here, Defendants’
advertisements were both misleading and
false. Flynn’s declaration proved that consumers had been actually confused
by SKYRIDE’s websites and advertising representations.
I don’t believe surveys should be required to show
materiality. Or deception, for that
matter. But it’s still annoying when the
accumulated doctrinal crud around the Lanham Act makes courts say things like
this. In the rigid and bad literally
false/misleading divide, actionable statements that are neither false on their
face nor false by necessary implication are misleading, which is to say that
consumers receive a false
message. By accepting evidence of
consumer reaction—here, evidence that consumers thought that defendant was
advertising that it could sell access to plaintiff’s skydiving services—as
evidence that the statements were false
(or “both misleading and false,”
whatever that means), the court ignores the division without admitting it,
making for even greater confusion. The
implicit/explicit distinction in false advertising law doesn’t work, and we
shouldn’t pretend it does.
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