wrong images aren't false if differences from actual product aren't material

Strong Current Enters. Ltd. v. Affiliati Network, Inc. 2021 WL 1383368, No. 20-cv-23692-UU (S.D. Fla. Mar. 26, 2021)

The parties compete to sell novelty consumer goods; defendant allegedly copied plaintiff’s business model including its product launches, providing its affiliates with Strong Current’s “marketing methods and materials, which include, among other things, product depictions and graphics.” Affiliati’s product offerings are allegedly “similar, but different” than those marketed by Strong Current, and therefore the products sold to consumers “differ from those depicted in the marketing materials.”

However, the false advertising claims failed because they didn’t identify material differences in the products. For example, Strong Current alleged that when consumers purchase a portable air conditioner from defendants, “they do not receive the air conditioners depicted in the misappropriated marketing materials, rather, they receive an inferior portable air conditioner that is different from the one depicted.” The ads allegedly lead consumers to expect to receive units containing “(a) handles; (b) single-colored (gray) fronts; (c) fronts with two gray sections; (d) round edges; and (e) bases and tops that are the same size.” But “the delivered units do not have handles and have a different overall look and feel from the advertised units.” However, the complaint didn’t explain why consumers would care.

Similarly, Strong Current alleged that consumer confusion existed where “[o]n multiple occasions, consumers have purchased products from Profit Point, where the products had been marketed using the misappropriated Strong Current methods and materials ..., and then contacted Strong Current (or its Marketing Affiliates) about problems or issues with the orders, incorrectly believing that they (the consumers) had purchased the products from Strong Current (or its Marketing Affiliates).” It alleged that “when the consumers have issues or problems with their orders and need to contact the seller and cannot recall where they purchased the products, a generic internet search ... leads them to Strong Current’s (or its Marketing Affiliates’) websites.” But this was pure speculation; it didn’t allow the reasonable inference that defendants’ use of allegedly misappropriated marketing materials was likely to cause consumer confusion. There were no allegations that defendants’ marketing materials referred to Strong Current in any way. Indeed, the complaint explicitly alleged that defendants market and advertise their products under a different brand.