"Paris" on makeup doesn't itself indicate origin

Eshelby v. L’Oréal USA, Inc., 2023 WL 2647958, 22 Civ. 1396 (AT) (S.D.N.Y. Mar. 27, 2023)

Eshelby sued L’Oréal over its use of “Paris” (including as part of the brand name “L’Oréal Paris”) and French-language text in ads and on the front of packages when the products aren’t made in France. They say in fine print on the back or side of the packaging that they are manufactured in the United States or Canada. She alleged that American consumers associate French products with high quality and luxury such that consumers are willing to pay a premium for French products, and further that other cosmetic products sold in the United States that display the word “Paris” are manufactured in France, making this deceptive to reasonable consumers. She brought the usual California claims and some others, but the court dismissed them all.

Some of the accused products didn’t have other French words on them. “As a matter of law, a mere reference to Paris is insufficient to deceive a reasonable consumer regarding the manufacturing location of a product.” Plus:

The word “Paris” always appears in stylized text underneath the word “L’Oréal,” in the same font and color as the word “L’Oréal,” such that a reasonable consumer would understand that “Paris” is part of the brand name “L’Oréal Paris.” … And, although a reasonable consumer may infer from the brand name that the company originated in Paris, a reasonable consumer would not also conclude that a particular product is manufactured in Paris, or elsewhere in France—particularly because each product also contains a disclosure on the back label stating the manufacturing location.

What does this mean for geographic deceptiveness or misdescriptiveness refusals, especially in light of the greater constitutional scrutiny given to refusals after Tam and Brunetti?

Reasonable consumers may not have to look for corrections to misleading matter on the front of the label, “but the front label on the products Eshelby purchased do not make any actual representations about country of manufacture; rather, Eshelby inferred from the word ‘Paris’ and the French-language text that the products were manufactured in France. The front label is not so misleading that a reasonable consumer who cared about the country of manufacture should not be expected to look at the full packaging for a disclaimer, which was clearly and correctly provided on the labels of each product Eshelby purchased.”

Even the addition of other French-language text was insufficient. Although she pointed to two other products with French names that were made in France, she didn’t allege “that the examples she points to are comparable to the haircare and makeup products she actually purchased, i.e. in terms of retailers, price point, or target audience.” Also, they presented their French text differently, with product names in French, and the French-language descriptions preceding the English translations. The L’Oréal products use product names in English only as well as large/preceding English descriptions, making it implausible that they were made in France for French consumers. And there was nothing on the labels making explicit claims about country of manufacture except the truthful disclosures on the back.

“The mere presence of words in a foreign language is insufficient to mislead a reasonable consumer.” [Citing a case about Spanish; is that really generalizable to all languages?]

Amending the complaint to include allegations about a survey supporting her claims would be futile because “[a] plaintiff cannot rely solely on consumer surveys to state a claim.” Anyway, the survey only showed respondents the front of the product, and omitted responses stating that, based on the front label of the product, the respondent does not know where the product was manufactured.