Tuesday, August 28, 2012

A case with legs? Supplier suing retailer for false advertising

Runberg, Inc. v. Victoria’s Secret Stores, Inc., No. 2:12-cv-00722-EAS-MRA (S.D. Ohio filed Aug. 10, 2012)

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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