Tuesday, June 14, 2016

Trademark Misrepresentation in Appearance of Advertising

Trademark misrepresentation rather than respecting the appearance of a marks brand through advertising runs the risk of using creative naming.  Courts will look at advertising's subjective effect on consumers.  The query for concern is to determine if the advertising seeks for the consumer to make the association with an existing unrelated brand of a product.  Any confusion likely to cause the consumer to relate the products as one and the other will be deemed suspect; running the risk of  being false.  The Lanham Act addresses the aspects of both infringement to trademarks and the misrepresentation of a product brought upon by suspect advertising or ‘false’ advertising.  All in the realm of competition for the use of words and appearances between products at times appears a blur for consumers.

Courts delve into the analysis of Lanham Act’s Section 43(a) where false association claims arising from false advertising are viewed as possibilities for claims of trademark infringement and suspect advertising.  This concern arose from a dispute between Tyson Foods, Inc., i.e., “Park’s Finest” and Parks, LLC, where the latter claimed that Tyson was infringing on its trademark.  The argument cornered on the plaintiff claiming that Tyson’s statement “Park’s Finest” was falsely representing its product as the defendant’s product.  The defendant, Tyson already has the existing product brand called “Ball Park” for which it was trying to image in its advertising.

The analysis of the case cut through the distinction of false advertising and trademark infringement claims.  The salient points raised by the court highlighted the aspects of false advertising and associations.  These two conducts that are addressed by the Lanham Act as prohibitive because they each can cause consumer confusion.  The confusion to be avoided is the result of the consumer deeming an advertising message as implicating a relationship and association with a product where there is no association to a brand, goods, products, and the like; hence, the false association driven by the advertisement.  What is prohibited is the when advertising seeks to involve the characterization of quality and the nature of an unrelated product, i.e.,  false advertising.

The court analyzed the plaintiff’s false advertising claim hinging on the argument that defendant was passing its products as the plaintiff’s products.  Since the court determined that defendant’s conduct and defendant’s advertising was not seeking to relate to plaintiff’s products or its nature or origin.  Because of this, plaintiff’s argument failed, as it was more an argument of false association and not one of false advertising under advertising law.  The court read the defendant’s use of “Park’s Finest” as not being a false statement because it clearly did not refer to the plaintiff’s product.  The words used by defendant referred to its own brand named “Ball Park” franks.   The creative naming of the hot dogs and the similarity of them barks a foul for the plaintiff claiming misrepresentation.  The nuance between false advertising under trademark law and false association under advertising law was made clear.

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