is "this video has been removed for violating the ToS" commercial advertising?

Darnaa, LLC v. Google, Inc., 2015 WL 7753406, No. 15-cv-03221 (N.D. Cal. Dec. 2, 2015)

 

Darnaa posted a music video, Cowgirl, to YouTube.  At one point, YouTube removed the video from its original location, later reposting it at a new URL with its view count reset to zero because of an alleged violation of section 4.H of YouTube’s Terms of Service, which prohibits the use of automated tools for increasing the view count of videos posted on its site.  Darnaa denied any such attempt and alleged that the removal, and YouTube’s posting of a notice that the video had been removed because it violated YouTube’s Terms of Service, harmed its business and reputation.

 

Darnaa argued that YouTube’s terms of service were unconscionable and thus unenforceable, because they granted Google unlimited discretion, limited Google’s liability, and shortened the statutory limitations period for all claims to one year.  Indisputably, the ToS were a contract of adhesion, which is enough to establish some degree of procedural unconscionability.  Here, though, the degree was slight.  There are alternative websites for sharing music videos, so Darnaa had meaningful choices.  YouTube didn’t hold Darnaa’s job hostage to agreeing, as in other cases, and Darnaa was free to take its content elsewhere.  Even if Darnaa didn’t read the terms, these terms weren’t hidden in the contract; Darnaa had a real opportunity to read the terms.

 

Substantively, the terms weren’t so one-sided as to be unconscionable.  None of the three provisions challenged by Darnaa shocked the conscience.  As for YouTube’s unbounded discretion, it was reasonable for YouTube to retain broad discretion and minimize its exposure to damages because it offers its hosting services for free.  Some California courts have found certain contractually shortened statutes of limitations to be unconscionable and unenforceable. But shortening the period to one year in this case was not unreasonable.

 

Darnaa’s claims were therefore dismissed as time-barred, unless Darnaa could amend the complaint to show that it was entitled to equitable tolling (based, I assume, on a timely filed state court suit prior to this one).

 

Google argued that the breach of contract and tortious interference claims were barred by the ToS’s Section 10: “In no event shall YouTube … be liable to you for any direct, indirect, incidental, special, punitive, or consequential damages whatsoever resulting from … (iv) any interruption or cessation of transmission to or from our services … [or] (v) any errors or omissions in any content … whether based on warranty, contract, tort, or any other legal theory[.]”  Such exculpation clauses were particularly appropriate where, as here, Google offered its service for free.  Darnaa argued that all of its claims—with the exception of negligent interference with prospective economic advantage—were intentional torts, which prevented the ToS from exculpating Google under California law.  This was correct—in California, “contractual releases of future liability for fraud and other intentional wrongs are invariably invalidated”—so only the negligence-based claim was barred.

 

As for the breach of the implied covenant of good faith and fair dealing, Google argued that the ToS allowed it to relocate or remove videos in its sole discretion “at any time, without prior notice and in its sole discretion,”  and to “discontinue any aspect of the Service at any time.” Darnaa argued that the relevant terms applied only to content, not to services such as video hosting, and that Google reserved only the right to terminate any aspect of its service as to all users, not to terminate service for a particular user. The court found the relevant terms ambiguous, because the provision for “Content” that violates the ToS didn’t include view counts in the definition of “Content.” Even if view counts were “Content,” it wasn’t clear that the ToS authorized the removal of the associated video, not just the offending view count.  It was also ambiguous whether the ToS permitted YouTube to remove any “Content” without prior notice, or whether it referred only to the Content that “infringes on another’s intellectual property rights.”  Further, it was not clear that YouTube reserved the right to discontinue any aspect of its service provided to a particular user, without restriction. Thus, it wasn’t clear that YouTube eliminated the implied promise of the good faith and fair dealing normally contained in every contract.  Thus, the contract must be interpreted against the drafter, and the implied covenant of good faith and fair dealing applied.

 

As for intentional interference with prospective economic advantage, Google argued that tortious interference didn’t apply to alleged interference with a large, anonymous group such as the public or a musician’s fanbase.  The claim based on Darnaa’s relationship to its fans was thus dismissed with prejudice.  However, Darnaa sufficiently pled Google’s knowledge of its relationship with Clear Channel and independently wrongful conduct (breach of the implied covenant of good faith). Darnaa alleged that “Clear Channel constitutes a major advertising industry competitor of Google” and that “[t]hrough the use of sophisticated tracking software,” defendants were “able to ascertain that the large majority of the viewers accessing the ‘Cowgirl’ video on YouTube came to the video by clicking links embedded in various of the hundreds of Clear Channel Internet radio websites.” Darnaa referred to Clear Channel in its email to YouTube protesting the removal of the video.

 

Defamation and Lanham Act claims were based on YouTube’s posting, at the original URL, of a message that the video had been removed for violation of the YouTube Terms of Service.  Google argued that Darnaa hadn’t pled “commercial advertising or promotion.”

 

Darnaa argued that the notice was inserted, at least in part, if not in whole, to influence viewers to buy or use Google’s goods or services because it showed that “defendants are on the job policing the Website and enforcing their policies for the protection of the Website and its users.” The complaint, however, alleged that the notice was made as part of YouTube’s service, perhaps for the purpose of “disparag[ing] the integrity” of Darnaa, which wasn’t enough; the court dismissed the claim with leave to amend. 

 

Defamation: Darnaa didn’t sufficiently plead that the notice was “of or concerning” them, that it had defamatory meaning, or that it suffered special damages.  Because the plaintiff was Darnaa, LLC, not the recording artist, there was no allegation that the plaintiff was a public figure; it need only plead negligence as to the truth or falsity of the statement.  However, the notice referred to the video, rather than the poster of the video.  There were no allegations about how the notice identified Darnaa, LLC.  Other courts have found that a statement alleging breach of contract or policy, including a breach of ToS, isn’t defamatory per se.  In the absence of any detail about the type of violation allegedly underlying the removal, a notice that a “video has been removed for violation of the YouTube Terms of Service” couldn’t constitute defamation per se.  Danaa would have to plead extrinsic circumstances that would make the notice defamatory is granted, as well as special damages.

Court mashes up Dastar and commercial speech doctrine to protect book from Lanham Act

Keel v. Axelrod, No. 15-1507, 2015 WL 7733973 (E.D. Pa. Dec. 1, 2015)

 

Political operative David Axelrod wrote a book, Believer: My Forty Years in Politics. Frank Keel, a political and media consultant, sued under state and federal law for reverse passing off, claiming that Axelrod falsely took credit for political consulting during the 2003 reelection campaign of former Philadelphia Mayor John F. Street, which Keel identified as a pivotal moment in his consulting career.  Street was in a close race with his Republican challenger, Katz, when members of the Philadelphia Police Department discovered an FBI listening device in Mayor Street’s City Hall office, reportedly placed there as part of a “federal investigation into City Hall corruption.”  The media wanted to know why Street was the target of an FBI investigation, and Street held an impromptu press conference, where he assured the public he had “done nothing wrong.”

 

In the hours after this press conference, Keel allegedly proposed, “[a]s part of the consulting services he was providing to Mayor [Street],” that the campaign “publicly announce that the bug was part of a ‘Republican dirty-tricks’ strategy” from high in the George W. Bush administration.  Keel alleged that he “conceived and implemented” the “Republicans Did It” strategy on his own, without any “input or involvement” from Axelrod.

 

Axelrod’s book, by contrast, says:

 

As we approached the final month of the campaign, I got a call from George Burrell, Street’s savvy political deputy at City Hall.

“I think we have a problem.”

“Problem?” I asked warily.

“Yes, it seems we’ve found a bug in the mayor’s office.” “A bug?”

“Yes, a listening device.”

“And who do we think this bug belongs to?” I said. I really didn’t have to ask, but was hoping against hope for an unexpected explanation.

“It appears to belong to the United States government,” Burrell said, slamming the door on my wishful thinking.

Four weeks before the election, the news would be filled with headlines about a federal investigation of the mayor and his administration. It struck me, as I thought about it, that this was our problem but also our opportunity. In an overwhelmingly Democratic town, a probe launched by the Republican Justice Department in Washington would surely be greeted with skepticism, perhaps even outrage. I called Burrell back. “We need to hold a press conference on the steps of City Hall and accuse John Ashcroft of trying to steal this election.” (Attorney General Ashcroft, a well-known conservative ideologue, was highly unpopular among Democrats.) When Street confronted reporters, frantic over the news, he came armed with a line I had written for him: “I’m happy to speak into a microphone I can see!”

 

Keel alleged that, in fact, right after the press conference, Axelrod demanded that Keel “immediately” stop implementing the “Republicans Did It” strategy. Keel also alleged that Axelrod “plainly also intended the book to provide advertising for promoting his political consulting business,” which was still active, and that he and Axelrod competed for potential clients.  The publisher was allegedly contributorily liable for failing to fact-check.

 

Why not just Dastar this?  The court mentions Dastar, but uses its general rationale that there’s a need to limit the scope of the Lanham Act to harmonize with the requirement of a majority of circuits that there be a “threshold commercial element” to the defendant’s activity.  True, the Second Circuit has indicated that “use in commerce” is broader than “commercial speech,” United We Stand America, Inc. v. United We Stand, America New York, Inc., 128 F.3d 86, 92–93 (2d Cir. 1997) (Lanham Act isn’t limited to “profitmaking activity”).  But all the relevant cases “involve trademark name infringement or the direct solicitation of clients, neither of which have been pleaded here.” Apparently, uses on the front cover of a magazine and online “present a much greater risk of deceiving potential customers as to the proper origin of the slogan than the facts presented in this case.”   Direct solicitations to potential customers can be “use in commerce,” but “a single passage in a nationally marketed book cannot be viewed as a direct solicitation of services to specific clients,” and anyway the book didn’t refer to any trademarked services of Keel, so even in the Second Circuit this claim wouldn’t work.  [This reasoning is extremely shaky, because it doesn’t explain why trademark infringement gets to cross the commercial speech barrier but other causes of action don’t. Not to mention its indifference to the head of §43(a) under which this claim is brought—either reverse passing off is actionable or it’s not, and if passing off would be actionable under the same circumstances I can’t see why the court’s logic works--nor, of course, should passing off be actionable even if the passage had stated that Axelrod was endorsed/sponsored by Keel.] 

 

The Third Circuit has yet to impose an explicit commercial use requirement, but the allegedly misleading use “must have a clear, promotional purpose to attract customers.” Also, a number of district courts in the circuit have found that “[t]he Lanham Act regulates only commercial speech.” Other district courts in the Third Circuit have also found that claims under the Lanham Act must concern commercial speech.  Here, there wasn’t “quasi-commercial activities such as trademark infringement or the direct solicitation of clients,” so Keel needed to plead commercial use.

Lanham Act disputes between nonprofits are actionable, but “commercial use” doesn’t depend on the legal status of a defendant.  Instead, it requires promotional use of the plaintiff’s proprietary material. Trademark infringement or the direct solicitation of customers “are clear, promotional and advertising activities.”  [This is the wrong way to the right result, because trademark infringement is only “clearly” promotional if you (a) sufficiently constrain what you’re willing to call infringement (a desideratum in itself, but achieved via Rogers or some other means that itself requires application of commercial speech doctrine), or (b) adopt a circular definition: that which causes confusion is by definition promotional.  (b) should lead you to the same holding with respect to other kinds of falsity with commercial effects, though.]

 

So, was the book passage in question commercial speech?  Under Third Circuit precedent, this question involves a “commonsense distinction between speech proposing a commercial transaction...and other varieties of speech.” Compared to the special on an upcoming NFL video game that the Third Circuit found was an ad in Facenda, the passage in Axelrod’s book didn’t note the availability of his consulting services, nor did it describe unique features of his services.

 

Keel argued that the unique nature of political consulting made false credit claims actionable, citing Gensler v. Strabala, 764 F.3d 735 (7th Cir. 2014).  Though both political consultants and architects rely on their records to acquire customers, “Gensler is distinguishable from the facts of this case because of the defendant’s commercial use of proprietary material.”  [Again, this is a classic example of letting property rhetoric distort analysis—yet so unnecessary to the outcome!  It doesn’t even work, conceptually: since Axelrod is describing the services he provided (according to him), then to the extent that his services also have a reputation he is using “proprietary material” in the sense that the court means it.  It’s “commercial” that’s doing the work here, because Gensler involved the defendant’s use of claims on his business website and associated Flickr account.]  Thus, it was unnecessary to reach the question of whether a reverse passing off claim based on services survived Dastar.

 

“[C]ommunications made primarily for expressive purposes, like the political and narrative purposes of Believer, enjoy broad First Amendment protection, and therefore, are generally not actionable under federal statutes such as the Lanham Act” [citing, among others, Citizens United].  Only if Axelrod plausibly wrote Believer to promote his consulting services to potential clients would his speech be actionable.  Although Axelrod had an economic motivation to sell as many copies as possible, that doesn’t make the contents of the book commercial speech.  The specific disputed passage also lacked an obvious economic motivation to further Axelrod’s political consulting services.  (The court expressed doubt whether the passage even referred to Axelrod’s services, though I think it did; the passage did not, of course, refer to Keel’s services.)

 

Most troublesome, however, was that the excerpt simply wasn’t an ad: “a message with a clear, promotional purpose.” Believer didn’t explicitly tout the availability of Axelrod’s consulting services, and couldn’t fairly be characterized as an “infomercial.”  This contrasted to “the unauthorized use of a trademarked name in a prominent location, such as the front cover of a magazine, or in the domain name for a business website,” which could be deemed ads.  Instead, Believer expressed Axelrod’s political views, and the challenged excerpt was a biographical anecdote.

 

Keel also didn't allege other facts linking Believer to the promotion of Axelrod’s consulting services. He didn’t allege that Axelrod solicited clients at his book signing or otherwise stated that Believer was a marketing tool.  And now we’re back to Dastar, mushing together the predicate “commercial advertising and promotion” with the substance of the claim: if attending book signings were enough to trigger a Lanham Act claim, then any number of authors could be held liable for mischaracterizations of past events; but requiring “this degree of accuracy in crediting strategies, ideas, and/or services mentioned in a larger expressive work” would be the Dastar-barred “search for the source of the Nile and all its tributaries.”

Reading list: commercializing fanworks in the US and Japan

Nele Noppe, Mechanisms of control in online fanwork sales: A comparison of Kindle Worlds and Dlsite.com, 12 Participations 218, 231 (2015) (citations and footnote omitted):

 

This research also suggests that while the establishment of Kindle Worlds may have been a watershed moment for fanwork sales in the U.S., its apparent failure should not be taken as proof that all fans are inherently opposed to the monetization of their works. DLsite.com alone serves hundreds of thousands of fans that are interested in selling and buying digital fanworks, including many English-speaking fans. Fanwork monetization is neither new nor exceptional even in parts of English-speaking fan culture. To provide just one example, ‘filing off the serial numbers,’ or changing identifying names from fan fiction in order to publish it as an ‘original’ novel, is a practice with a long and storied history that is currently popular especially in the Twilight fandom from which Fifty Shades of Grey hailed. The existence of ‘filing off the serial numbers’ and other strategies of fanwork monetization suggests that Kindle Worlds is not failing because all fans are uninterested in selling fanworks, or because all fans believe that fanwork exchange should only be ‘non-commercial’. I would argue that Kindle Worlds is failing because it does not add enough value for fans – value to their fannish experience, or to their commercial aspirations. This implies that fanwork sales could be successful on the English-speaking Internet if a better business model were found.

 

EU public consultation on intermediary liability

EU Delegation to the US, Public Workshop on the Digital Single Market Strategy, Consultation on Online Platforms, Cloud & Data, Liability of Intermediaries, Collaborative Economy

 

2003 Directive: recital says that there’s no prohibition for member states to come up w/codes of conduct for intermediaries or generalized duties of care.  If you can or should reasonably expect that an intermediary should have been aware of illegal activity, you can impose certain responsibilities. Not a hands-off approach to what’s on your system.  Problem: how harmonized are these rules? Notice and action: that is harmonized.  But when we did 2010 assessment, practice on how quickly to respond, which formats can be used, can notices come from private parties was very widely diverging. Also risks of overreaction: parties can send continuous notifications w/o even checking whether content is even possibly illegal.  Puts intermediaries in difficult permission.  Also intermediaries continue to claim to be passive, but business model is based on processing data (implication: that’s not passive).  There is no conclusion yet about what we should do, if anything.  Difficult to get concrete information on what’s actually happening. 

 

Sampling as monitoring: control procedures can be justified if they sample because they catch illegal activity samples ex post, even if they don’t catch every piece of bad activity.  If we did ex post, how post should the ex post be?  Certain member states interpreted the Directive on “expeditious” action on notification as 24 hours, while others interpreted it as 6 months.  You can’t have a common market with such huge differences.  There are certain requests from stakeholders—not good policy/reasonable to expect we can simply say there’s no problem. Not fit for purpose given the amount of data going out.  We aren’t really talking about ©/IP—we’re talking about all kinds of illegal content, including terrorist content, radicalization.

 

Q: if liability might exist for insufficient monitoring, then why wouldn’t an intermediary be in trouble if it misses one thing? Why isn’t that a general obligation to monitor, inconsistent w/the directive?

 

EU person: There are concerns that you can’t have a duty of care w/o a general monitoring duty. 

 

Jonathan Band: Internet has space for ecommerce; but also for competing values.  Emphasis should be in favor of free expression. US goes further than ecommerce directive in §230.  Bad ideas may come to the US here—right to be forgotten, ancillary copyright.  Comments about

 

RT: OTW: actually a nonprofit, with no business partners, hosting user-generated content: That doesn’t mean small scale. 90 million pageviews per week, approaching 2 million unique pieces of content, over 600,000 registered users—writing skills, language skills, coding skills to mostly female users.  All volunteer, including our support and abuse team, who are not lawyers.  A standard that requires us to behave like YouTube, with automated scrutiny, or with “staydown” to keep a piece of content down no matter who posts it, would simply shut us down, despite all the benefits we provide.  Sampling is the same: would require us to have a larger team of lawyers than we have support personnel to engage in legal analysis—be clear on what that means.  Then we’d get arguments about whether we should be sampling/auditing more heavily in problem areas like audio—should it be random per work or within categories—the internet is much bigger and more diverse than the sites that are often focused on.  Civil society is more than businesses and the inquiry should keep that in mind.

 

A: My personal idea is auditing, that is not an official position of the EU, but important to consider.

 

Emma Llanso (sp?), CDT: Overblocking of lawful content is inevitable when you try to impose these types of duties on intermediaries.  Intermediaries having to figure out what content is illegal will be really dangerous.  Takedown and staydown: also very clear that this can’t be accomplished w/o monitoring obligations—inconsistent w/ ecommerce directive.

 

A: Note that we are open to different definitions of online platforms.

 

Q: note that monitoring duties harm smaller market entrants—works against the EU.  US companies already dominate the internet—how to replicate in the EU?  Excessive compliance costs in EU favor the giants, who already have $.  Magical thinking among non-programmers: humans write code; code can’t just scrutinize everything. Imperfect algorithms & humans; at least you need a good faith exception. No level of perfection will be obtained.  Circular: if you put in good faith, what standard do you truly get? 

 

A: I like good faith effort (but I am not official EU policy).  People have very bizarre ideas of how software is built.  In European legal system, we do have charter of fundamental rights, including freedom of expression/access to information; equal status to right to security, privacy, etc. Commission has not taken a position but should remember it’s part of our system. We also can’t live in a world in which a court has to order every takedown.

 

Q: cybersecurity—risk-based approach could be modeled. 

 

Internet Ass’n: Startups.  In US, bright line safe harbors have been instrumental in success of many startups.  Driven investment capital towards startups, which is also key.  If goal is to foster climate in EU conducive to investment/startups, remember success story of US.

 

A: You need to provide data on this, not just assertions, when you answer the associated questionnaire for this inquiry.

 

Software & Info Industry Ass’n: Just b/c of lack of legal liability, doesn’t follow that intermediaries/platforms should do nothing. Socially responsible platforms do have programs in place to deal w/things like revenge porn.  §230: a good samaritan provision—giving them opportunity to take voluntary steps to deal w/problematic content w/o incurring legal liability.  Sometimes these discussions elide responsibility w/legal responsibility.

 

Wilson Center: conceptual slippage—implementation is on the internet provider/self-regulating. But that’s different from enforcement. Would this be decentralized enforcement or not?  Code of conduct—corporate social responsibility model. Will also be important who participates/draws that up.  Hasn’t been much about what the EC can/can’t do. Complexity: ecommerce & other directives have been around for 10 years or more. How much will the role of ICT standards/Comm’n admin guidelines play? Will the EC do administrative rulemaking? For small businesses & nonprofits, they’re sometimes unaware of bulk of rulemaking taking place to flesh out the regulation.

 

A: There’s a clear push not to do hard legislation if at all possible. The delay before Council/Parliament agreement, full regulation (immediately applicable) or directive (must be transposed to member states)—average is 7 years.  We know very well not to do legislation unless clearly needed. Thus, rely on admin rulemaking and cooperation.

 

US Chamber of Commerce: Not clear why ecommerce should be treated differently than physical markets—especially when digital commerce is the best way to enhance competition for easy startups. Should encourage more of that instead of trying to pull down leaders, esp. w/o clear definition of the problem we’re trying to solve?  Is competition policy not doing the job?  What are the barriers b/t states?  On the cloud issues: mentions distrust of cloud computing—but we’re not clear where that comes from.  Why are you worried about it/who distrusts it?  You are asking for data but we want to ask for the same thing from you.  Also: Data protection: must work w/digital single market—not 28 different methods of enforcement.

 

Q: Many European startups simply pick up & move to the US for access to customers, etc.  Data flow regulation is a big part.

 

A: (In response to statement about EU targeting US companies for competition investigation) Actually we target 80% EU companies; US companies just tend to complain more in public whether they are targeted by EU or US regulators—you didn’t hear EU banks whinging about being fined millions of dollars in the US for behavior that was legal in the EU; you don’t hear the German chemical sector whining about the constant investigations it’s under in the EU.  EU is the most open market in the world.  We are extremely transparent.

Amicus brief in visual meme case

While I'm at it, Chris Sprigman and I filed a brief on behalf of IP professors in a case against Fox News for republishing a 9/11 meme on a Fox Facebook page, with commentary on the order of "Never Forget"--the owner of the copyright in the photo of firefighters raising the American flag at Ground Zero, which was part of the meme, sued.  The brief argues that a meme of this sort, reflecting popular reaction to important events, is fair use.

Amicus brief in karaoke case: Dastar revisited

Mark McKenna (and I) filed an amicus brief on behalf of IP professors in another karaoke case, dealing with alleged infringement that consisted of displaying karaoke lyrics using unauthorized copies of the karaoke tracks, based on alleged trade dress in the audiovisual display/the use of plaintiff's mark in the tracks.

Metaphor likening plaintiff to peeping Tom is opinion, not fact

Right Field Rooftops, LLC v. Chicago Cubs Baseball Club, LLC, --- F.Supp.3d ----, 2015 WL 5731736, No. 15 C 551 (N.D. Ill. Sept. 30, 2015)

 

The Rooftops allowed patrons to view live Cubs games from their location near Wrigley Field, until the Cubs built a video board that blocked the view from the Rooftops.  Plaintiffs alleged that the Cubs engaged in anti-competitive behavior and false advertising, and also breached a contract that provided that the Rooftops would give the Cubs 17% of their profits in exchange for the Cubs' promise to not block the view of Wrigley Field from the Rooftops.  The court dismissed the complaint in its entirety.

 

Antitrust claims failed not just because of the baseball exemption but also because there was no plausible relevant market. Contract claims failed because the contract didn’t bar expansions of the facilities approved by the government, which the video board was.

 

The Lanham Act and state law deceptive trade practices claims came from a statement by a Cubs representative in response to a question about the construction at Wrigley Field:

 

It’s funny—I always tell this story when someone brings up the rooftops. So you’re sitting in your living room watching, say, Showtime. All right, you’re watching “Homeland.” You pay for that channel, and then you notice your neighbor looking through your window watching your television.

 

The Rooftops alleged that this was a defamatory statement alleging criminality on the part of the Rooftops.  Whether an observer could plausibly perceive a factual statement depends on “(1) whether the statement has a precise and readily understood meaning; (2) whether the statement is verifiable; and (3) whether the statement’s literary or social context signals that it has factual content.”  Here, no reasonable person could believe that the speaker was stating a fact, rather than an opinion through “a readily understandable metaphor” that described his feelings.  “There is no objective way to verify his statement because there is no way to fact check whether the Rooftops are similar to those who charge admission to watch their neighbor’s television.”  [There was no mention of charging admission in the analogy, but ok.] This was “hardly an accusation of criminality,” especially given the decades-old battle between the parties about whether the Rooftops can let patrons watch the Cubs game for free. No reasonable person could understand the statement as an accusation of an indictable offense or as “anything other than the frustrations of an individual who has litigated the same issue in different fora and in various forms for years.”

 

Verisign fails to enjoin XYZ's statements about .xyz versus .com domains

Verisign, Inc., v. XYZ.com, LLC, 2015 WL 7430016, No. 14-cv-01749 (E.D. Va. Nov. 20, 2015)

 

Verisign is the industry leader in domain name registration, with over 120 million registrations in the <.com> and <.net> space. XYZ entered the market in 2014 offering registrations in the <.xyz> space. Verisign alleged false advertising in 1) statements regarding <.com> availability; 2) non-public statements about XYZ’s revenue; 3) statements about XYZ’s registration numbers; and 4) statements about XYZ’s marketing budget.

 

In an NPR interview, XYZ representative Negari said “[a]ll the good real estate is taken. The only thing that is left is something with a dash or maybe three dashes, and a couple numbers in it. Did you know that 99% of all registrar searches today result in a ‘domain taken’ page? [O]n average, nine out of - nine out of ten .com searches show up as unavailable.”  Further, NPR described XYZ as the next <.com>. In a YouTube video, XYZ claimed, “MoveOver.com--.xyz is for the next generation of the internet.” The video showed a dirty old Honda with a license plate that read <.com>, next to a shiny new Audi with a license plate that read <.xyz>. The narrator continued, “with over 120 million dot corns registered today, it’s impossible to find the domain name that you want. It’s 2014 and the next generation of domain names is here.”

 

As for statements about revenue, made between Negari and business partners and between XYZ employees and media consultants, Verisign challenged, “[m]y company has received 775,000+ registrations and ... generated over $5 million in revenue ...”; “[w]e’ve sold over 600,000 domains just in the four months that we’ve been live”; “[w]e’ve sold about 800,000 dot XYZ domain names since we’ve launched...”; and “[o]ur wholesale price is around $8.”  Further, in e-mail and blog posts, XYZ allegedly falsely claimed to be the top-selling new Top-Level Domain (‘TLD‘) at various times, misrepresenting the number of registrations and confusing consumers into thinking free-trial domain names were actually sold at a wholesale price.  While XYZ claimed that “[t]he .xyz registry has put a multi-million dollar awareness campaign in place to educate users on what .xyz is...,” Verisign contended that, in fact, XYZ’s marketing budget consisted primarily exchangin domain names for advertising credit.

 

First, the statement that “all the good real estate is taken” was nonactionable opinion, not a verifiable fact. NPR did in fact describe XYZ as the next <.com>, so XYZ reporting that fact in advertising wasn’t a false statement. Moreover, Verisign’s own data showed that <.com> names are largely unavailable. In a given month, Verisign received about two billion requests to register <.com> domain names, yet fewer than three million are actually registered, mostly because the requested names were unavailable. Likewise, the YouTube video was puffery and opinion. “The message communicates Defendants’ opinion of itself as a shiny new sports car and nothing more.”

 

The statements about XYZ’s revenue and registrations were factual statements that were verifiable, but there was no evidence of falsity.  XYZ made a deal with Web.com in which Web.com purchased 375,000 domain names for a price of $8 each: $3 million. XYZ bought advertising from Web.com in the form of 1,000 impressions for $10 each, also for a total of $3 million, so Web.com paid with advertising credit, and gave the .xyz domain names away as free trials to their subscribers. An independent audit by a reputable accounting firm found that this exchange was for fair value. The court thus found that the statements regarding the Defendants’ revenue, registration numbers, and marketing budget were true.  Likewise, when XYZ claimed to be a market leader in new TLDs, it told the truth.

 

Furthermore, the court found that Verisign failed to show materiality.  Even had Verisign shown an intent to deceive the receiving audience, that wasn’t enough to show actual deception. Verisign’s survey tested whether consumers thought that .xyz domain name registrations were purchases, but that didn’t itself show deception.

 

Verisign also failed to show a causal connection between the alleged false statements and its claimed economic damages. Dot-com registrations actually increased after XYZ’s statements, although they coincided with a decline in .net registrations.  But correlation isn’t causation, and Verisign’s expert “failed to account for the over 700 competitors in the <.net> space during the same time period, failed to account for the decline in Plaintiff’s <.net> sales prior to Defendants’ statements, and failed to account for changes in Plaintiff’s own advertising and promotion.”  These were fatal flaws.

 

As for alleged harm to goodwill, that couldn’t lead to a presumption of irreparable harm, given eBay and Winter, though the Fourth Circuit hasn’t (yet) so decided.  Verisign didn’t show evidence of economic or reputational harm, and thus there was no irreparable harm.

informal representations to competitor's customers can violate Lanham Act

Display Works, LLC v. Pinnacle Exhibits, Inc., No. WMN-15-2284, 2015 WL 7454084 (D. Md. Nov. 24, 2015)

 

The parties entered into a nondisclosure agreement in connection with a potential acquisition by Pinnacle.  Pinnacle agreed that it would, among other things, refrain from directly or indirectly soliciting for employment any employee of Display Works for two years. Display Works alleged that Pinnacle breached the agreement by hiring multiple employees during the two year period. Further, Pinnacle allegedly falsely told Display Works’ customers that it was reorganizing, portraying it as bankrupt or financially distressed in an attempt to lure customers away.  

 

The court found that “hiring multiple employees of plaintiff during the prohibition period,” does not, in and of itself, constitute a breach of contract, since the contract didn’t outlaw hiring, only certain types of solicitation.  Its terms explicitly allowed Pinnacle to hire employees who contacted Pinnacle on their own initiative; whose employment with Display Works was terminated for at least three months; or who responded to an advertisement or general solicitation not directed at employees of Display Works. The complaint failed to allege solicitation outside those boundaries.

 

As for Lanham Act false advertising, Pinnacle argued that the complaint didn’t allege “advertising or promotion,” because the complaint alleged only that Pinnacle told certain Display Works customers that Display Works was “reorganizing” to lure them away, and that Pinnacle disseminated false rumors about Display Works.  Informal representations to a competitor’s customers can constitute “promotion,” depending on the size and structure of the market; further inquiry was not appropriate on a motion to dismiss.

 

In Maryland, injurious falsehood requires: (1) a falsehood which tended to disparage plaintiff’s title to its property, or its quality, or to its business in general, or some element of its personal affairs; (2) actual malice or with reckless disregard for the truth; and (3) the falsehood played a material and substantial part in inducing others not to deal with the plaintiff, and that as a result the plaintiff suffered special damage. Though Pinnacle argued that Display Works failed to allege the precise content of the statement or its context, the court found that the allegations were sufficient to put Pinnacle on notice. However, the allegations of special damages weren’t pled with sufficient particularity—Display Works needed to plead either particular named lost customers or a general diminution of business and extrinsic facts showing that such special damages were the natural and direct result of the false publication, so the claim was dismissed.

Pairing map with EPA mileage claims can misrepresent real-world mileage

Kim v. General Motors, LLC, 99 F. Supp. 3d 1096 (C.D. Cal. 2015)

 

Kim sued GM for misleadingly advertising EPA estimated mileage figures and numbers derived from these figures as “actual, expected mileage under normal, real world driving conditions.”  Kim’s 2011 GMC Terrain crossover vehicle was sold via a brochure, “Going the Extra Mile to Make the Most Out of Every Inch,” that claimed that the Terrain “has the best highway fuel economy in its class at 32 highway miles per gallon” and included a chart with the language “UP TO 600 HWY Miles.” Next to this chart was a map outlining a route from Chicago, past Cleveland and Buffalo, to Rochester, New York (more than 600 miles). And so on (with “EPA estimated” in fine print).  In a 2011 press release, Don Johnson, GM’s Vice President of United States Sales Operations, was quoted as saying that “[c]ustomers love the 610–mile range that our compact crossovers provide and they get it without sacrificing capability or style.”  GM’s Chevrolet website for its “Equinox” vehicle also claimed “32 MPG highway and a highway driving range of up to 600 miles....” The only mention of an “EPA estimate” was in a footnote in reference to “class-leading highway fuel economy,” not “32 MPG highway,” and, in order to view the footnote, the user had to drag the mouse over the text entitled “view additional disclosures” at the bottom of the web page. Many ads didn’t disclose that the actual real world mileage “will vary.”

 

Kim brought the usual California claims. First, the court rejected GM’s preemption defense.  Federal law provides that “When an average fuel economy standard prescribed under this chapter is in effect, a State or a political subdivision of a State may not adopt or enforce a law or regulation related to fuel economy standards or average fuel economy standards for automobiles covered by an average fuel economy standard under this chapter.”  But “standards” manufacturers must follow are not the same as advertised fuel economy estimates. 

 

Similarly, federal law preempts any “law or regulation on disclosure of fuel economy or fuel operating costs for an automobile” that isn’t identical to federal law about EPA-mandated estimates on the required label on a car.  However, Kim wasn’t arguing that disclosure of the EPA mileage estimates was, by itself, deceptive. Instead, the argument was that GM made additional statements that were misleading, and federal law didn’t address those.  Kim was hallenging “GM’s use of the EPA estimates in a way that may give consumers the mistaken impression that they are able to achieve real-world mileage and tank range derived from those figures,” and that wasn’t preempted.

 

There was also no conflict preemption, despite extensive federal regulation of EPA estimates.  GM claimed that if “an EPA estimate included in a ‘window sticker’ is not a ‘warranty’ under federal or state law ... then surely any claim that the mere inclusion of this same estimate in an advertisement is such a guaranty, warranty  or promise flatly conflicts with federal law.” Under federal law, car dealers must have a window sticker on every new vehicle, detailing, among other things, the fuel economy of the vehicle and estimated annual fuel costs. But nothing in federal law purported to regulate advertising of fuel economy beyond specific requirements for the stickers and associated booklets.  There was no reason to think Congress wanted to preempt state regulation of misleading advertising.

 

The FTC permits automobile manufacturers “to advertise the EPA estimates and make the disclosures required by the FTC for that kind of advertising, or to advertise non-EPA estimates and make the much more onerous FTC-required disclosures for that kind of advertising.”  However, while the FTC regarded the phrase “EPA estimate(s)” as the “minimum disclosure necessary to comply with [this regulation]” within all media platforms, the FTC didn’t prevent states from applying stricter disclosure standards under their false advertising laws.

 

Two of Kim’s three alleged misrepresentations were nonetheless insufficient to state a claim.  Claims that GM didn’t adequately disclose the “EPA estimate” or omitted “actual mileage will vary” were insufficient; GM did nothing more than use footnotes to comply with federal disclosure rules. The FTC Industry Guide governing fuel economy advertising specifically states that “inclusion of the phrase ‘EPA Estimate(s)’ is sufficient without more to comply with the FTC’s regulations.”

 

However, the third set of misrepresentations was adequately pled.  The alleged 600-mile range was supplemented with a map showing a 600-mile route, which could lead a reasonable consumer to believe that she would actually get 600 miles on a single tank of gas in the real world.  These claims went above and beyond the EPA mandated estimates.  “[T]he purpose of EPA fuel economy estimates is to provide a consistent basis for comparing the fuel economy of competing vehicles relative to each other, and … such estimates are not designed to determine the actual expected mileage for a vehicle under ‘real world’ driving conditions.”  GM attempted to blur the line between that and the real world, and this was potentially actionable.

Transformative work of the day, Jenny Holzer edition

The Toast offers us Baby Jenny Holzer.

ABA Blawg 100

I'm happy to be there again, along with a number of other fantastic blogs still going strong (not to mention my favorite hall of famer).

If only the last Trump would sound: Trump University case continues

Makaeff v. Trump University, LLC, 2015 WL 7302728, No. 10cv0940 (S.D. Cal. Nov. 18, 2015)

 

Charlatan and budding fascist Donald Trump failed to get rid of many consumer protection claims against him and his “Trump University” (now renamed).  Can’t wait to see how he’ll explain why this means he’s great.

 

In 2004, Trump helped found Trump University, a private, for profit entity offering real estate seminars and purporting to teach Mr. Trump’s “[i]nsider success secrets.” TU shifted to live events in 2007. Consumers were first invited to a ninety-minute Free Preview, preceded by an orchestrated marketing campaign:

 

For example, consumers were sent “Special Invitation[s] from Donald J. Trump” which included a letter signed by Mr. Trump that stated “[m]y handpicked instructors and mentors will show you how to use real estate strategies.” Newspaper advertisements displayed a large photograph of Mr. Trump, stating “[l]earn from Donald Trump’s handpicked expert,” and quoted Mr. Trump as saying: “I can turn anyone into a successful real estate investor, including you.” Similarly, TU’s website displayed large photographs of Mr. Trump and included statements such as “Learn from the Master,” “It’s the next best thing to being his Apprentice,” and “Insider success secrets from Donald Trump.” Further, TU advertisements “utilized various forms of recognizable signs to appear to be an accredited academic institution” such as a “school crest that was ubiquitous and used on TU letterhead, power point presentations, promotional materials and advertisements.” Plaintiffs have provided evidence that Mr. Trump reviewed and approved all advertisements.

 

The free previews began with a promotional video of Trump saying the things you’d expect Trump to say, minus the racism.  E.g., “We’re going to have professors and adjunct professors that are absolutely terrific. Terrific people, terrific brains, successful. ... The best. ... we’re going to teach you better than the business schools are going to teach you and I went to the best business school.”  The cost of the next step was $1,495.  At that “seminar,” consumers were invited to sign up for the Trump Elite Program for up to $34,995, which allegedly promised unlimited mentoring for an entire year.

 

Named plaintiffs—California, Florida, and New York residents—purchased and were dissatisfied with TU programs.  After Makaeff initially sued, TU countersued Makaeff for defamation.  Claims at issue here: the usual California claims; financial elder abuse in violation of Cal. Welf. & Inst. Code § 15600 et seq.; deceptive acts and practices in violation of § 349 of New York’s General Business Law; violation of the Florida Deceptive and Unfair Trade Practices Act (FDUTPA); and misleading advertisement in violation of Florida’s Misleading Advertising Law (MAL)/elder abuse.

 

The court partially certified a class of buyers from the three relevant states based on certain “core” misrepresentations: “(1) Trump University was an accredited university; (2) students would be taught by real estate experts, professors and mentors hand-selected by Mr. Trump; and (3) students would receive one year of expert support and mentoring.” Subclasses were divided by state and by age for the elder abuse claims.  The class was certified for liability only, but decertified for damages.  The opt-out period has expired.

 

The court first found that plaintiffs, who were now aware of TU’s misrepresentations, lacked Article III standing to seek injunctive relief.  Fair warning: Trump testified at his 2012 deposition: “Do we plan to start [TU] again after this lawsuit is won and after we bring the lawsuit against your firm. I would say probably yeah.” He also told reporters that TU was “on hiatus.”

 

Trump argued that he was entitled to summary judgment because he did not personally make the alleged “core” misrepresentations to the class representatives, nor did the class representatives rely on misrepresentations made by him. He also argued that the representation that he “hand-picked” TU instructors was true.

 

Trump stated in interrogatory responses and deposition testimony that he “attended periodic meetings with various experts responsible for drafting and developing Trump University course materials” and that he saw resumes of instructors.  However, though he said he was personally involved in the selection of four people who developed TU course materials, he also stated that “most if not all speakers, instructors and mentors were selected by Trump University representatives ....” Several instructors testified that they never met with Trump. There was a genuine dispute of material fact as to whether the representation that students would be taught by real estate experts, professors and mentors “hand-picked” by Mr. Trump was true.

 

Trump also argued that he wasn’t liable for restitution because the plaintiffs paid money to TU, not to him directly. However liability under the UCL and FAL “ ‘may be imposed against those who aid and abet the violation,’ ” there was a genuine issue of fact about Trump’s personal participation: (1) Trump was the founder and Chairman of TU, and authorized TU to use his name, photos, and quotes for all TU seminars and presentations; (2) TU’s materials all prominently feature Mr. Trump’s quotes, image, logo, and signature; (3) Trump reviewed and authorized advertisements; (4) Trump personally financed TU and reviewed financials; and (5) Trump represented that he hand-picked the TU instructors and mentors. Trump’s weak response that he didn’t control the day-to-day operations of TU was insufficient to win summary judgment, given his involvement in the alleged core misrepresentations.

 

Similar challenges to Trump’s direct responsibility for the named plaintiffs’ enrollment also failed.  True, they didn’t talk to Trump directly.  But, for example, Makaeff saw slides with statements by Trump, including that “[t]his is the next best thing to being my apprentice,” “[y]ou’ll learn inside secrets from me,” and “he was going to provide his hand-picked instructors.”  Makaeff testified that it was important to her that Mr. Trump would hand-pick the instructors because “that’s a promise he made, and I would think that he would have the ability to pick the best people since that’s his expertise.”  Likewise, plaintiff Low testified that he received a letter signed by Trump which included the statement that “[m]y handpicked instructors and mentors will show you how to use real estate strategies,” that the signed letter was the “[n]umber one” reason why Low decided he wanted to buy a TU program, and that Low “took it as being very significant that [Mr. Trump] signed it” because “I got that from him.” Low further testified that he considered all TU communications as coming from Mr. Trump.  Under California law, a material misrepresentation can be actionable even if it wasn’t the sole cause of the plaintiff’s injury.

 

Florida plaintiff Everett similarly testified that the “Trump name, the Trump reputation, the Trump-backed program” played a “huge role” in and was the “only ... reason” for her decision to purchase TU programs, and it was important to her that she would be working with Mr. Trump’s “handpicked” instructors and mentors. She further testified that the name “University” implies an “educational program” with a “full staff of ... handpicked experts that understand real estate investing” and she thought it was “like a real estate school or a special school that has certification and follows certain guidelines for the state.”  Florida and NY claims survived, the NY claims based on similar testimony.

 

As for the elder abuse claim, California law defines elder abuse as occurring when a defendant “[t]akes, secretes, appropriates, obtains, or retains real or personal property of an elder [65 or over] ... for a wrongful use or with intent to defraud, or both” or “assists” in doing so. The statute defines “wrongful use” as if the defendant “knew or should have known that this conduct is likely to be harmful to the elder ....”  Trump argued that he didn’t know how many TU students were senior citizens and there was no “target market” for TU.  But plaintiffs offered evidence that TU ads could be interpreted, and were interpreted by Low, as targeting seniors, and that Trump approved all ads. That raised a triable dispute as to whether Trump “should have known” the conduct was likely to harm elders. The same result occurred for the Florida elder abuse claims.

court skips recent precedent, finds only anonymous communications are "advertising or promotion"

Arandell Corp. v. Walker, 2015 WL 7308649, No. 14-C-1279 (E.D. Wisc. Nov. 19, 2015)

 

This case illustrates that lawyering matters a lot; courts don’t always know the most recent circuit precedent.  Here, the only purported federal claim was false advertising under the Lanham Act.  But the court found the claim “insubstantial in the sense that ‘prior decisions inescapably render the claim[ ] frivolous.’” The reason was that “the purported false statements were made in person-to-person communications to specific customers, rather than in promotional materials disseminated to anonymous recipients.” And, in First Health Group Corp. v. BCE Emergis Corp., 269 F.3d 800, 803–04 (7th Cir. 2001), the Seventh Circuit “held” that only the latter form of communication was “commercial advertising or promotion.” Then, Sanderson v. Culligan International Co., 415 F.3d 620, 624 (7th Cir. 2005), “described as frivolous an argument that a person-to-person communication is actionable under § 43(a)(1)(B).”

 

However, neither the plaintiff nor the court apparently considered Neuros Co., Ltd. v. KTurbo, Inc., 698 F.3d 514 (7^th Cir. 2012), in which the Seventh Circuit fixed this outlier holding (if holding it was):

 

[First Health and Sanderson] do not hold that “advertising or promotion” is always limited to published or broadcast materials—an interpretation that would put us at odds with all seven other federal courts of appeals to have considered the issue. … The cases from the other circuits are not inconsistent with the holding in Sanderson that three person-to-person communications at trade shows do not add up to commercial advertising or promotion or the holding in ISI Int'l that letters threatening suit for patent infringement are not commercial advertising or promotion; and in First Health the Lanham Act was held applicable.

 

A classic advertising campaign is not the only form of marketing embraced by the statutory term “commercial advertising or promotion.” Podiatrist Ass'n required merely “some medium or means through which the defendant disseminated information to a particular class of consumers.” And the most recent case, LidoChem, explained that “the required level of dissemination to the relevant purchasing public ‘will vary according to the specifics of the industry.’ ”

 

If “advertising or promotion” just meant “advertising,” then “promotion” would do no work in the statute. More important (because of the frequency of redundant language in statutes), there are industries in which promotion—a systematic communicative endeavor to persuade possible customers to buy the seller's product—takes a form other than publishing or broadcasting.

 

KTurbo held that a “road show” involving multiple presentations to individual customers was sufficient “advertising or promotion” to trigger the Lanham Act.  Without further attention to the allegations of the complaint, it’s hard to tell whether this is a KTurbo situation.  Since the plaintiff only argued that “advertising or promotion” was a jury question, the court didn’t have the chance to consider the issue—though I think failure to do so probably justifies reconsideration, if the allegations are appropriate.

Court rejects recall when falsely advertising defendant already notified customers

Riverdale Mills Corp. v. Cavatorta North America, Inc., 2015 WL 7295541, No. 4:15-CV-40132 (Nov. 18, 2015)

 

Riverdale makes welded wire mesh for use in marine traps using a “galvanized after welding” (GAW) process followed by a polyvinyl chloride (PVC) coating (GAW + PVC). The combination extends the durability and longevity of the wire mesh in marine environments. A cheaper, less effective method involves galvanization before welding, which leaves the mesh more prone to corrosion even if it’s then coated in PVC.  Riverdale has extensively educated customers on the difference between GAW and GBW mesh.

 

Cavatorta distributes Italian-made wire mesh.  Its main focus is on GAW + PVC mesh, used for making marine traps, but it also makes non-GAW products to serve the fence and cage industries. Its GAW products were used interchangeably with Riverdale’s by fishermen and marine trap distributors, and prominently advertised as GAW + PVC.  Its products are sold to companies that buy rolls of wire mesh and then use the mesh to build marine traps for sale to fishermen.

 

Between April of 2014 and May of 2015, the mesh producer made a significant manufacturing error and produced about three million pounds of mesh that was GBW, not GAW, but was packaged as GAW (sold under the name SEAPLAX).  When one of Cavatorta’s customers complained, Cavatorta contacted each of its nine customers.  It reached agreements with some of these customers regarding discounts and other forms of monetary compensation for the error, and it repossessed much of the mistaken product and transported about 1.5 million pounds to a warehouse. One of its customers, Ketcham, has not yet been satisfied with Cavatorta’s offers to make him whole, but he knew of the mistake and wasn’t not using or selling mislabeled product.

 

Riverdale sued for violation of the Lanham Act, seeking to require Cavatorta (a) to cease all sales, including any importing of the falsely labeled Seaplax product [not clear whether the comma after ‘importing’ was deliberately missing, but the court treats it as present]; (b) to avoid false advertising, including false GAW claims; (c) to recall all the falsely labeled product; (d) to prominently label [mislabeled] SEAPLAX as GBW; and (e) to issue corrective advertising.  Cavatorta consented to (a), (b), and (d), but contested the recall and corrective advertising.

 

The parties agreed on falsity and materiality; literal falsity gave a presumption of consumer deception. However, though there could be no doubt of initial deception, “Cavatorta has since taken significant steps to remedy any resulting confusion.”  It told all its customers and took custody of all the mislabeled product that its customers wished to return. “[I]t is in the best interest of Cavatorta’s customers who received mislabeled product to alert their own customers who may be affected. Credible testimony was presented during the hearing that the lobster-fishing industry is a tight-knit community and is generally aware of the issue through word-of-mouth communication.”  Thus, the court was convinced that Cavatorta took sufficient corrective action to make ongoing confusion unlikely.

 

Riverdale argued that it was suffering ongoing injury because it has built its reputation on the superiority of the GAW process:

 

The lobster fishing season is currently nearing its end in New England. Riverdale predicts that when the traps are pulled out of the water and stored for the winter, those made from GBW mesh will develop blooms of rust. Riverdale further predicts that this will cause fishermen who thought that their traps were made from GAW mesh—but who actually received mesh from one of Metallurgica’s failed production runs—to doubt Riverdale’s claims about the long-lasting nature of the GAW product. In turn, this will harm the reputation that Riverdale has worked so hard to form.

 

The court conceded that reputational harm was difficult to prove, and that an erosion of consumer confidence in a product could take time to fully develop. Still, the court concluded, this was nothing more than conjecture, and in fact Riverdale experienced an increase in sales since the industry became aware of Cavatorta’s mistake. This would be a completely different case if Cavatorta were still selling mislabeled mesh, but the court predicted that, on these facts, the industry wouldn’t blame the GAW process, or Riverdale by association, for any prematurely rusting marine traps. Thus, there was no likelihood of injury to Riverdale’s reputation.

 

The status quo had been restored without need for injunctive relief. Cavatorta’s existing actions were sufficient to protect consumers from the harm of false advertising.