Alerts

AD-ttorneys@law – August 19, 2020

Alerts / August 19, 2020

In This Issue:

I’m Counting, and I Can’t Add Up!

Is medical alert systems manufacturer Life Alert fudging some deadly serious numbers?

League of Legends

“I’ve fallen, and I can’t get up!”

The genius who cooked up this line belongs in the earworm writers hall of fame, the marketing Valhalla or the ad writers Who’s Who.

We submit that this famous tag, derived from television commercials aired by medical alert system Life Alert in the early ’90s, is up there with Wendy’s “Where’s the Beef?” and Joseph Enterprises’ “Clap on, clap off … the Clapper!”

If you didn’t see the commercial in its heyday, the premise was simple and frightening: An elderly woman falls in her home and presses the button on her Life Alert necklace, alerting a dispatcher who asks her what’s wrong. The iconic tagline follows.

The best part of the legend is that the line was written by the woman who played the elderly fall victim in the first version of the commercial. Or so she said. Like all good things, there’s some argument about who invented it.

By the Numbers

How many of us, having absorbed the commercial in our early years, went on to use the Life Alert system? Although the ad ironically was a hit among younger viewers, it’s not clear that the success of the ad led to increased sales of the system.

But almost 30 years after the original ad aired, Truth In Advertising Inc. (TINA) wants to be sure that the product itself is matching up to its marketing claims. And that means some simple multiplication.

According to an investigation by TINA, Life Alert “claims in marketing materials that it saves a life every 11 minutes. That’s 131 lives a day, 47,815 lives a year … since 2008 … the number stands at 536,487 lives, more than half a million people.”

These numbers, however, are called into question by Life Alert’s own website, which states that out of the 500,000-plus calls it receives each year, only 12,000 or so constitute “life-threatening emergencies.”

The Takeaway

This is a TINA investigation, which means they’re not going to let that statement go without a hard look. “While a reasonable consumer might equate ‘saved a life’ with ‘kept from dying,’” the watchdog writes, “is Life Alert counting non-life-threatening episodes as life-saving events to boost its numbers?” Here’s a disclaimer that TINA found on the Life Alert site:

Life Alert defines saved from a catastrophic outcome as an event where a subscriber activated the system, had an actual emergency, was home alone, was unable to get to the phone to call for help and Life Alert dispatched help.

But what do “catastrophic outcome” and “actual emergency” mean in the context of the numbers claims? The disclaimer raises more questions than it answers.

TINA hasn’t heard back from Life Alert, but we’ll be sure to track this investigation and see where it goes.

Search Company Slammed by FTC for Fake Salacious Reports

MyLife accused of drawing in searchers with hints of criminality

Search of Shame

Admit it. You’ve done it. Everyone’s done it. Well, we’ve never done it, but everyone else has.

How’s that ex-husband? Your awful boss from your last job? The dude you met on spring break? The girl you met at the Dave Matthews concert in 1998 – the one you dated for a few weeks before she broke up with you (when she found out you were still sort of hanging out with your ex) and then moved to the Bay Area to make custom-scented oatmeal soaps?

(That last one was a bit specific, but we just made it up. Really.)

In any case, you’ve done “the search.” Whether it was to make contact again or to wallow in schadenfreude, you’ve Googled someone to get the dirt. And if you did it during the past few years, you might have received hits from a service called MyLife.

We [Don’t] Know Who You Are

If the Federal Trade Commission (FTC or Commission) is to be believed, MyLife might have lured you in by teasing you with scandalous information. According to the Commission’s recent complaint filed against MyLife in the Central District of California, the company would lead amateur sleuths to a “teaser background report.” The teaser, offered to the user before they purchased a subscription, serves up dark hints about the activities of the search target.

“Even if the searched-for individual had no history of criminal, traffic, or sex offenses,” the FTC wrote, “the Teaser Background Report suggested that the individual had arrest or criminal records, sexual offenses, potential bankruptcies, liens, or legal judgments.” The report featured two buttons – the first inviting the user to “View [name’s] Court, Arrest, or Criminal Records” and the second offering up the subject’s “Sex Offender Records.”

Taken together with other statements that the searched-for individual “may have” such records, users might conclude that the records actually exist.

The Takeaway

We’ll leave aside the FTC’s other, equally serious charges against MyLife, including onerous cancellation procedures and negative-option subscription agreements. We’ve talked about these practices quite a bit in this publication.

But besmirching someone’s character as a marketing ploy? This is new to us (although we’d bet good money that it’s been done before, especially in the record search industry).

If the FTC’s accusations against MyLife are true, then this suit is an object lesson in how technicalities do not absolve marketers from legal action. Sure, the notice on the teaser report said that the search subject “may” have unflattering records – no concrete promises were made. But when this statement is combined with the other elements – the “view” buttons in particular – within a single context, reasonable consumers might draw all sorts of conclusions. Especially if they don’t want to pay for a subscription and are willing to believe something is wrong with the target.

The Commission is alleging violations of the FTC Act, the Telemarketing Sales Rule, the Restore Online Shoppers’ Confidence Act and the Fair Credit Reporting Act. So far MyLife has chosen to fight rather than settle, so if there are fireworks later on, we’ll let you know.

Jurisdictional Toss Gives Sommeliers Reason to Whine

Trademark infringement suit tossed despite Instagram posts

Understated, Yet Complex

The process for becoming a Master Sommelier is akin to a byzantine ascent through the Masonic grades. We won’t go into detail about the baffling, rigorous testing involved, but the title – conferred in the states by the nonprofit Court of Master Sommeliers, Americas (CMS-A) – is as coveted as it is rare. Only a handful of sommeliers achieve this grade each year.

Until 2018, that is. That year saw a spike in successful aspirants that clued CMS-A into possible fraud. When it investigated, CMS-A discovered that someone had distributed information about the test to various applicants – and all but one of that year’s 24 inductees had their titles revoked.

But the issue at hand isn’t uncovering who passed around the 2018 test cheat sheet. Instead, we’re concerned with a trademark infringement case that sprung up because of the testing scandal.

Full Court Press

CMS-A sued Daniel Pilkey, one of the inductees whose title was revoked, back in June 2019 in the winy-est federal district of them all, California’s Northern District. Pilkey serves as the Midwest regional sales manager for Sonoma County’s Paul Hobbs Wines Company, with sales territories including Kansas, Nebraska, Iowa, Minnesota, Wisconsin, Illinois, South Dakota and Missouri. (The region where he worked will be important later.) CMS-A, which owns the “Master Sommelier” trademark, claims that Pilkey represented himself over social media as an official Master Sommelier despite losing his title, and in doing so infringed CMS-A’s trademark rights.

Its evidence included Twitter chats, photos of wine bottles and vineyards in Instagram posts geotagged in California, an Instagram post referencing particular restaurants where Pilkey made an appearance, and another post with his business card promoting a judging gig he took at something called the “Sommelier Challenge International Wine & Spirits Competition.” (We weren’t invited.) He also allegedly used the Master Sommelier title on his Instagram, Twitter and LinkedIn profile pages.

Pilkey moved to dismiss for lack of jurisdiction in October 2019; the court approved his motion last month.

The Takeaway

“The Court is faced with a somewhat novel task in evaluating whether Defendant’s posts on social media, including the posts described above, amount to intentional acts expressly aimed at California,” the order notes. “Only a handful of courts have directly considered whether a specific social media post, or series of posts, constitute purposeful direction. Even fewer of these courts have considered posts to a personal account.”

The court found that Pilkey’s social media posts connected him more firmly to the Chicago wine scene than California’s and that he did business outside of California, not in it. While he occasionally mentioned his upbringing in the Golden State and his current, California-based employer in his posts, “the content of his posts appears to be general information and enthusiasm about wine – topics which might be appealing to any sommelier or fan of wine.”

The court saved more sweeping language for CMS-A’s argument that “because California is widely acknowledged to make superlative wine, Defendant’s posts about wine must clearly be targeted to a California market.” This argument, the court writes, “would sweep a citizen of any state making a personal social media post about wine under the aegis of the California courts simply because much good wine is made in California. … This expansive notion of jurisdiction cuts against the scope of the contacts that courts have traditionally required to justify the exertion of judicial power.”

For a comprehensive look at the crossroads of jurisdictional issues and social media, the order is well worth a read. We couldn’t cover all the topics that fell within its scope – the plaintiff threw a lot of spaghetti (pairs nicely with a 2006 Michele Chiarlo Barbera d’Asti Le Orme) at the wall. Be sure to check it out.

Not So Fast! Speed-of-Use Claims Weaponize Puffery

If your product works faster, prove that the “work” is comparable

Again With the Context

We’ve said it before, again and again: When it comes to advertising and marketing, context is king. And – fair warning – we’re about to say it once more.

Smile Direct Club (SDC) is a “teledentistry” company that creates custom dental aligners based on impressions mailed in by the patient. By evaluating cases at a distance, the company keeps office visits to a minimum, saving consumers significant dough.

Understandably, SDC is attracting the attention of other industry professionals and providers. The American Association of Orthodontists, for instance, brought a challenge to its marketing claims before the National Advertising Division (NAD) alleging, in part, that SDC was falsely claiming that its aligner products delivered results “3x sooner than braces.” SDC lost the challenge and is appealing to the National Advertising Review Board.

Three Times the Charm

“3x faster” seems to be a preferred tag for SDC; recently, the company faced another challenge before NAD regarding a similar claim. The maker of Crest Whitestrips challenged SDC’s claim that its Bright On Whitening Kit product was “3x faster to use than strips.”

SDC’s kit differs from traditional whitening strips; it consists of a whitening pen and a blue-light device. SDC claimed that the kit would take five minutes a day while the Crest product required 30 minutes of use.

The Takeaway

Now for the context.

NAD examined the “3x faster to use than strips” tag and recommended that SDC discontinue the claim. “While SDC’s Bright On kit may be three times faster to use than the challenger’s Whitestrips products,” NAD wrote in its summary, “the comparison to strips – known for their teeth whitening capabilities – reasonably conveys a message of equivalency to tooth whitening outcomes.” In other words, you can’t make a “3x faster” claim unless the speed produces the same result. But SDC hadn’t furnished evidence that its brightening product did the brightening better. “In the absence of evidence that SDC’s Bright On kit offers comparable whitening to Crest Whitestrips,” NAD recommended that “the claim be discontinued.”

The remaining claims – that SDC’s product offered customers “premium whitening” and their “brightest bright smile” – could stay once the timing claims were removed. Without the “3x faster” claim, they were puffery – proving again that the context in which claims are made is the whole game.

Did Vape Maker Smear Competitor With Nonexistent Lawsuit?

Puffco alleges rival dropped its suit, but acts as if it’s alive a year later

Fistipuffs

We’ve covered many odd advertising and marketing stories, but here’s one that seems genuinely off-kilter.

There’s a knock-down, drag-out brawl going on between two electronic vaporizer manufacturers: Puffco and Kandypens. (With names like these, it sounds more like a swordfight between rainbow-wielding DayGlo-colored elves, but that’s beside the point.)

Puffco recently filed a complaint against Kandypens in the District of Delaware alleging false advertising under the Lanham Act, violations of Delaware’s Uniform Deceptive Trade Practices Act and trade libel under Delaware Common Law.

And what did Kandypens do? Did it make unsupported claims about its own products? Allege untrue defects in Puffco’s wares?

Read on ...

Ghost Ship

In the complaint, Puffco alleges that Kandypens previously coordinated a class action lawsuit against Puffco – using a Kandypens employee or affiliate as the named plaintiff – in the District of Arizona back in March 2019, alleging “that Puffco’s PEAK® vaporizers were defective and that Puffco did not honor its warranties on the PEAK® vaporizers, and accused Puffco of fraud and breaching statutory, express and implied warranties.” This suit was voluntarily dismissed in August 2019.

Here’s where things get sticky, so to speak. Puffco alleges that before the suit was even filed, Kandypens’ CEO had created an Instagram page titled “puffcolawsuit” and related hashtags. At an unspecified point after the first page was created, he launched a second page with its own tags, titled “puffco.lawsuit.”

One of the pages included a tag stating that the page was “dedicated to protecting customers who have been ripped off by Puffco by their defective products …” and included a link to the complaint filed by Kandypens in March. Puffco alleges that Kandypens failed to disclose that it was the source of the pages.

The Takeaway

“Kandypens knew the Class Action Lawsuit was dismissed in early August 2019,” Puffco writes in its complaint, “but nevertheless continued to operate and maintain its two puffcolawsuit Instagram pages and its ‘#puffcolawsuit’ posts.” Puffco claims that posts continued to be made on the pages through June 2020; some of them contain pictures of alleged damaged products and unsubstantiated claims “that Puffco’s PEAK® vaporizer is a defective product, that Puffco provides poor customer service, and that Puffco does not honor its warranties on the PEAK® vaporizers.”

From Puffco’s perspective, the whole affair is an attack by Kandypens on the reputation of its products and services, magnified by the imprimatur of a lawsuit – a lawsuit that no longer exists.

If Puffco’s right, Kandypens just executed an interesting Machiavellian maneuver that gives the lie to its cutesy name. We’ll let you know if anything comes of it.

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