claim that Adidas NHL jerseys are not "authentic" versions of on-ice jerseys can proceed

Smith v. Adidas America, Inc., 2023 WL 5672576, No. 6:22-cv-788 (BKS/ML) (N.D.N.Y. Sept. 1, 2023)

A non-food case litigated by Spencer Sheehan, just profiled in this New Yorker article. Smith brought claims under NY and other consumer protection laws as well as warranty and other common-law claims, based on Adidas’s marketing of its NHL jerseys as “authentic.”

screenshot from complaint

Adidas is the “official manufacturer of the jerseys worn on the ice by NHL players.” It identifies at least some of the NHL jerseys it manufactures and sells as “authentic” and allegedly sells them at a “premium” price. But they were allegedly not “the same as the one[s] ... players wear when the puck drops on the ice.” Specifically, Smith alleged, the quality of the “fight strap” of the “authentic” jerseys is inferior as compared to the fight strap of on-ice jerseys; the fabric of the “authentic” jerseys is half the thickness of the fabric of the on-ice jerseys; the stitching of the “authentic” jerseys is weaker and less durable than the stitching of the on-ice jerseys, the neck holes of the “authentic” jerseys are larger than the neck holes of the on-ice jerseys;the air-flow dimples of the “authentic” jerseys are smaller and less effective than the air-flow dimples of the on-ice jerseys; the logos, numbers, stripes, and names on the “authentic” jerseys are applied via heat pressing while those features of the on-ice jerseys are double-stitched; and the “authentic” jerseys are manufactured in Indonesia while the on-ice jerseys are manufactured in Canada.

The complaint cited online complaints about calling NHL jerseys “authentic” and said they should be called “replica” jerseys—which allegedly sell for less. Smith argued that these complaints gave Adidas knowledge of the problem, while Adidas argued that these complaints

Showed that “the physical differences [in jerseys] are ... widely known among hockey enthusiasts,” and that “a reasonable consumer would not view the retail ‘authentic’ jerseys as identical to the on-ice ‘pro stock’ jerseys, because it is widely known that the two have not been the same for at least 15 years.”

The court dismissed the MMWA claim for lack of subject matter jurisdiction, and the warranty claims for failure to provide pre-suit notice.

But the NY GBL claims survived. It was plausible that “authentic” was “likely to mislead a reasonable consumer acting reasonably under the circumstances.”

Adidas argued that Smith’s understanding of “authentic” was merely subjective, and that, because it’s the official manufacturer of NHL jerseys, any jersey it manufactures is, by definition, authentic. But a reasonable consumer would not necessarily believe that “authentic” is synonymous with “officially licensed.”

In addition, Smith provided relevant context to inform the reasonable consumer’s understanding: Adidas allegedly describes the jersey as “the same as the one[s] [NHL] players wear when the puck drops” and alleged myriad ways in which they materially differed from those worn by NHL players. There was no “alternative explanation” of “the same as the one[s] [NHL] players wear when the puck drops” that “render[s] [P]laintiff’s inferences unreasonable.”

screenshot with "this jersey is the same as the one Oilers players wear when the puck drops" highlighted

Adidas argued that the differences were easily discoverable, but so what? This wasn’t an omission claim, and Adidas isn’t allowed to make easily disprovable affirmative misrepresentations.

But claims based on the laws of other states were insufficiently specified, and there was no duty alleged as necessary for a negligent misrepresentation claim. Also, the where/when wasn’t pleaded with sufficient particularity for fraud, and unjust enrichment was dismissed for not really being separate.