"Natural" trade name can mislead consumers, court holds

Early v. Henry Thayer Co., 2021 WL 3089025, No. 4:20-CV-1678 RLW (E.D. Mo. Jul. 22, 2021)

Thayer markets THAYERS Natural Remedies, which are sold in drug stores, grocery stores, and other retail stores nationwide. Early sued Thayer for violations of the Missouri Merchandising Practices Act, breach of express warranty, and for unjust enrichment for misleading consumers into believing its products are natural and do not contain synthetic ingredients.

After other holdings, such as finding no FDCA preemption, the court turned to Thayer’s argument that its trade name couldn’t be an express warranty. Trade names, Thayer argued, “only ‘communicate[ ] that any product bearing said trademark is authentic.’ ”

But there were factual issues about the trade name: the ® only appeared after THAYERS, not after “Natural Remedies.” Still, Thayer argued, it was part of a registration it had, albeit a disclaimed part. [Which really should answer the question: it’s not a protectable part of the trade name as such.] But anyway, the court declined to find any rule that a trade name can’t create an express warranty.  “The Court does not agree that authenticity is the only message a trade name can convey. As other courts have found, it is not unreasonable for consumers to attach meaning to the names of products, particularly when descriptive words are part of the name.” Seems right, especially after Tam and Matal!

However, the court dismissed any claims based on Thayer’s online statements because the plaintiff didn’t allege that she was personally exposed to or relied on those statements.

The court also found that listing ingredients on the side panel wasn’t enough to avoid misleadingness for purposes of a motion to dismiss, and that the plaintiff alleged a sufficient risk of future harm to allow her claim for injunctive relief.