In a recent false advertising case, the court reminded everyone again that if you say something about your product, you had better mean it.
Emson, which sells cookware products largely through direct response television spots, brought a false advertising claim against Masterpan and Smart & Eazy Corp. (“S&E”). According to Emson, both defendants made false claims about their “Original Copper Pan” product, including that the product is the first-of-its-kind because certain versions of the product are made of (as opposed to coated with) copper. However, Emson had been selling its copper-coated “Gotham Steel” pots and pans since 2016 – before the “Original Copper Pan” product was introduced. Also, based on the testing it performed, Emson found that the defendants’ “Original Copper Pan” product in fact contained “undetectable levels” of copper, and that the inner coating lacked copper entirely.
Except for the motion to dismiss claims against S&E for failure to state a claim, the District Court for the Southern District of New York denied the defendants’ motions to dismiss. According to the court, it was plausible that Masterpan’s advertisements for its “Original Copper Pan” product were false and in violation of the Lanham Act. For example, the court found it plausible that Masterpan attempted to falsely and deceptively convey to consumers that its product was the first-of-its-kind pan when other copper pots and pans preceded it on the market.
Another interesting aspect of this case was Emson’s argument that the defendants misrepresented the product as having been “As Seen on TV” when, according to Emson, the product was never advertised on television. Website, print and promotional advertising for the “Original Copper Pan” included the “As Seen on TV” logo, but Emson claimed that the defendants never actually advertised the product on television. While the court felt that this claim was a bit tenuous, it decided that discovery might determine whether or not the claim is actually false.
TAKEAWAY: The case illustrates the need to support all claims made about a product, even through the use of logos. Calling a product “original” when that is not the case, or using the “As Seen on TV” logo when that’s not actually true, will be factored into a false advertising analysis, so advertisers need to be ready to support such claims.