odd 2d Circuit case about misleadingness versus confusion

Gibson v. SCE Gp. Inc., 2023 WL 4229913, No. 22-916 (2d Cir. Jun. 28, 2023)

Another models (and one model’s sister) v. nightclubs case. Gibson et al. appealed partial summary judgment against them on on their claims for false endorsement under section 43(a) of the Lanham Act, and violations of New York Civil Rights Law sections 50 and 51. Appellant Burciaga also appealed a judgment awarding her $5,000. The court of appeals affirmed.

The “falsity of the implied association” between plaintiffs and defendant didn’t relieve plaintiffs of the burden of showing likely confusion. (As I’ve said before, it’s worth noting that the FTC generally thinks that appearing in what is obviously an ad does not itself constitute an endorsement, consistent with this outcome.)

Somewhat oddly, the court then says:

To the extent that this approach to the false endorsement claim diverges from our caselaw involving false advertising, that result is consistent with the fact that the two types of claims are distinct. See Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 122 (2014) (explaining that false association and false advertising claims under the Lanham Act are distinct). Whereas the text of the Lanham Act’s false association provision requires that the false or misleading representation of fact be “likely to cause confusion,” its false advertising provision requires only that a person “misrepresent[ ].” Compare 15 U.S.C. § 1125(a)(1)(A), with id. § 1125(a)(1)(B).

This is one reason people don’t like unpublished opinions; false advertising cases have also required resulting deception, but presumed it in cases of literal falsity—not implied falsity.

This seems like unthinking textualism which future courts will rightly not take seriously. How do you know if something is a misrepresentation (as opposed to literally false) without looking at likely deception?