Monday, September 23, 2019

"Hawaiian" plus imagery isn't deceptive indication of origin (or is it?)

Maeda v. Kennedy Endeavors, Inc., No. 18-00459 JAO-WRP, 2019 WL 4544272 (D. Hawai’i Sept. 19, 2019)

Kennedy sells “Hawaiian” brand snacks; plaintiffs alleged that the name and packaging misled them into thinking that the snacks were made in Hawai’i from local ingredients, in violation of Hawai’i and California law.  (They’re made in Washington state, which it says on the back of the package.) Kennedy argued that its uses of “Hawaiian” and Hawai’i imagery were puffery.  The court found that, for purposes of a motion to dismiss, plaintiffs pled deceptiveness to a reasonable person for the Hawai’i claims, except with respect to injunctive relief based on future harm. However, and somewhat puzzlingly, it reached a different result with respect to California claims (reasoning that there was no Hawai'i precedent about finding lack of deceptiveness on a motion to dismiss).
some of the accused packages with Hawaiian name and imagery
Williams doesn’t require consumers to look at the back of the package to the nutrition label, but the court distinguished it because that case involved fruit juice snacks and alleged misrepresentation about ingredients. This is a case involving alleged misrepresentation about origin.  The court apparently believes that “an origination label readily identifies location to correct potential misconceptions about geographic origin, while an ingredient list requires an examination to ascertain whether representations about a product are true.” (The court also said it wasn’t relying on the Washington origin disclosed on the back, though.)

While the front of the package isn’t necessarily puffery, no reasonable Californian consumer could be deceived. “Other than the word ‘HAWAIIAN’ there are no assertions, phrases, or claims to assess on the packaging at issue.” [Kind of depends on what the images imply, doesn’t it?]  The court thought that “Hawaiian” isn’t general, “[b]ut neither is it a specific assertion or concrete statement about a product.”  That seems like a misguided conclusion—there may be some room for dispute about definitions, but origin statements are treated as factual all the time. Still, the package bore no more specific identification of a place in Hawai’i as the origin of the products: “merely referencing Hawaii and its culture on the packaging is not enough on its own to confuse a reasonable consumer regarding the origin” of these products, without additional representations. Also, “unlike products such as macadamia nuts or coffee, chips are not inherently associated with Hawai‘i.”

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