"As seen on TV" can be false advertising if seller hasn't been seen on TV

E. Mishan & Sons, Inc. v. Smart & Eazy Corp., 2018 WL 6528496, No. 18 Civ. 3217 (PAE) (S.D.N.Y. Dec. 12, 2018)

Plaintiff Emson sued defendants Masterpan and S&E for false advertising.  The parties compete to sell pots and pans.  Emson’s Gotham Steel pots and pans are made of aluminum and have a copper-colored, non-stick ceramic and titanium coating; it uses direct response TV commercials and as “As Seen On TV” logo on its packages and other ads.

S&E and Masterpan sell “The Original Copper Pan” which allegedly deceives the public by falsely and deceptively conveying to consumers that its cookware is the first of its kind and that Emson’s (and other’s) products are not the originals but are instead mere imitations. In addition, defendants allegedly falsely advertised certain versions of the OCP as being made of, and not merely coated with, copper. “Although each pan has a copper-colored cooking surface, Emson alleges that it ran tests on samples of the 12-inch OCP,” and found that “the cores of each of the tested Original Copper Pans had undetectable levels of copper” and that the inner coating on the samples also lacked the presence of copper.  Finally, defendants allegedly “use an ‘As Seen On TV logo in their advertising,” without having advertised on TV, or only minimally doing so.

The court found that false advertising was plausibly alleged against Masterpan, in terms of copper construction, use of “original” to suggest it was first of its kind, and use of “As Seen on TV.”  The court noted that the allegations on the last one were tenuous, and that discovery might deterimine whether there was literal truth/any TV advertising.  Masterpan tried to distance itself from statements on the main website and on Groupon, but while it was conceivable that Masterpan had no control over or awareness of those statements, the court wouldn’t assume so on a motion to dismiss. It was plausible that Masterpan “controls or is party to the marketing statements regarding its products that appear on both websites.” The OCP website “bears the name of the product that Masterpan manufactures and sells,” and even if it wasn’t registered to Masterpan, it was plausible that “Masterpan has had a say in the words used to market its products as sold through that website.” Masterpan’s control over Groupon advertising was even more plausible, since the OCP Groupon page “explicitly states that the product is ‘[s]old by Master[p]an’ and that ‘the merchant is solely responsible to purchasers for the fulfillment, delivery, care, quality, and pricing information of the advertised goods and services.’”

Defendant S&E, however, fared better. Emson alleged sufficient facts to plausibly conclude that Masterpan markets and sells the OCP, as noted above and by providing documentary evidence that Masterpan shares directors with Dreambiz, Ltd., which owns the trademark “The Original Copper Pan.” But there was nothing so specific as to S&E, only allegations that it shared an address with Masterpan.