quick bit on Skydive Arizona and surveys

Skydive Arizona, Inc. v. Quattrocchi, No. 10-16099 (9^th 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.