Friday, August 31, 2012

Satirical picture doesn't make rest of blog post mere puffery/opinion

ThermoLife Intern., LLC v. Gaspari Nutrition, Inc., 2012 WL 3744715 (D. Ariz.)

Previously.  ThermoLife and Gaspari, competing suppliers of dietary supplements, accused each other of false advertising and unfair competition.  In counterclaims, Gaspari alleged that ThermoLife disparaged its products with statements on ThermoLife’s website and on third-party websites that Gaspari products were mislabeled, underdosed, spiked, poorly formulated, and pixidusted, and also made disparaging statements about Rich Gaspari, Gaspari's president.

The court found that, even under Rule 9(b), Gaspari had sufficiently alleged specific falsity as to the statements on ThermoLife’s own website, e.g., that ThermoLife falsely claimed that Gaspari’s products didn’t contain effective doses.

Mostly, ThermoLife argued that its blog post on a third party site wasn’t actionable.  The court disagreed.  The statement that Gaspari’s products were “poorly formulated and pixidusted” was within the scope of the Lanham Act, and wasn’t mere puffery.  “[T]he statements reflect a relatively straightforward, if subjective, report of the Court's order related on a previous motion to dismiss.”  The court thought that the picture and the headline “Things look bleak for Gaspari Nutrition after Federal Judge allows all ThermoLife[’]s claims against [Gaspari] for selling steroids as supplements to move forward” could possibly be considered satire, but the article itself couldn’t be understood that way.  The picture, which seems less satirical than barely comprehensible to me:

The unfair competition claim also survived, except that Gaspari’s general allegations of “use of illegal means” were insufficient.

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