The Top 20 Most Incredible, Amazing, WOW – False Advertising Claims! – Ep. 28 [Podcast]

Summary

In this week’s episode of Stuff You Should Know About IP, Thomas Colson and Raymond Guarnieri discuss the differences between false advertising and puffery. Distinguishing between false advertising and puffery often depends on how specific a factual claim is. Under the US Lanham Act, deceptive trademarks, which are false advertising, are prohibited. And the US Patent and Trademark Office will reject marks for being deceptive. Some of the most mind-blowing, amazing false advertising cases are as follows:

• Mylanta Nighttime Strength was deemed deceptive because the product was not formulated for nighttime relief and did not provide all-night relief.
• BreathAsure was found deceptive because there was no scientific proof that the product could assure its users that they would have fresh breath after using it.
• America’s Favorite Pasta was deemed puffery.
• Barbecue Beans, which contain barbecue sauce and no meat, was found to be non-deceptive.
• A case involving Tito’s Handmade Vodka, which is allegedly not made by hand, is pending.
• Polysapphire was held to be facially false as a product name for a polycrystalline aluminum oxide orthodontic bracket because the product did not have polysapphire in it.
• Lovee Lamb was found deceptive because the product does not contain lambskin.
• White Jasmine was found deceptive for a tea that did not include white tea.
• Super Silk was found deceptive for silk-like clothing that contained no silk.
• Napa Valle Mustard Co. was found deceptive for a product not made in Napa Valley.
• Titanium was deemed deceptive for a recreational vehicle that was not made out of titanium.
• Diet Coke was found to be non-deceptive despite claims that it gave its users a false impression it would help with weight loss.
• Plasma was refused for a nutritional supplement because the product contained no plasma protein.
• Fungi-Nail was deceptive because the product did not effectively treat toenail fungus.
• A claim against Subway – because its Foot Long Sub allegedly was less than twelve inches in length – was settled, with the presiding judge saying that the case was no better than a racket because the lawyers got paid $525,000 for bringing a case that should have been dismissed out of hand.
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Transcript

Raymond Guarnieri:

Can you have a trademark that might make you guilty of false advertising? What’s the difference between false advertising and puffery? Well today, we’re going to run through our top 20 most mind-blowing amazing false advertising cases. Now was that false advertising or puffery? We’ll find out. This is Stuff You Should Know About IP. Today’s episode of Stuff You Should Know About IP is brought to you by The Trademark Lawyer Magazine. If you want to stay up to date with everything that’s going on in the world of IP and trademarks, go to www.trademarklawyermagazine.com. Each issue is free to read for up to eight weeks. That’s trademarklawyermagazine.com for global news in the world of trademarks. All right, Tom. So was that false advertising, or was I puffing, was I doing puffery? How you use that as a term?

Thomas Colson:

Yeah, you were puffing. You were definitely puffing on that case.

Raymond Guarnieri:

Puffing? Yeah.

Thomas Colson:

Saying it’s the most mind blowing case examples of false advertising and trademark. That’s probably puffery, right? Because typically the question is it puffery or is it false advertising a lot? And usually it comes down to how specific are you? If you say this is the world’s greatest pizza, or if you say we have surveyed 500 people and we’ve compared our pizza to every other pizza. And 386 of those people have agreed that ours is the best. Now we’re into the world of false advertising if that’s not true. Or like daily supplements, these will make you feel great versus you will feel 30% better. We know that because scientific studies show that.

Thomas Colson:

So the difference between puffery… And it’s not a hard line. It’s a fuzzy line. Because when they think about that, or more importantly, when they examine that at the court level, they’ll also look at your other advertising and your other words that go around it to see whether or not you’re actually making a claim, a factual claim, or you’re just boasting and puffing essentially. At Executive IP, we have the world’s greatest training videos. Puffery. At Executive IP, our training videos have been scientifically proven to increase your knowledge about this topic by 40%. False advertising.

Raymond Guarnieri:

I was going to say, false advertising. Yeah.

Thomas Colson:

Right, right.

Raymond Guarnieri:

Now anecdotally, people say that.

Thomas Colson:

Yeah. They’re really good. But you’re right.

Raymond Guarnieri:

They love them.

Thomas Colson:

So the reason I wanted to chat about this today is, so I teach this class at the EPFL in Switzerland. It’s an executive MBA school. And normally I go there for it, but because of the pandemic, I’ve been doing it on Zoom. And a couple of the students had really some good questions about, can a trademark be false advertising? So you have your trademark, which is the identification of the source or origin of your product, right? But can it be false advertising? And the example somebody used-

Raymond Guarnieri:

Did they have an example?

Thomas Colson:

Yeah. They said the example is Swiss Labs. And the guy said, “The Swiss Labs, is that legal because they’re actually in France.” And I was like, “Wow, I didn’t know that. I thought they were in Switzerland.” Now I did a little research on it. And actually, it used to be called the French Swiss Laubscher Labs, and it was in France. Okay? So that was in 2000. And they make these chromatography materials for labs in Switzerland, okay? So it’s the French Swiss Labs. And then in 2010, they moved to Basel in Switzerland, and they switched their name to Swiss Labs. So actually that’s not false advertising because it was the French Swiss labs. They made the products in France. They sold them to chromatography labs in Switzerland. That’s cool. And then when they moved to Basel in Switzerland, they became Swiss Lab.

Thomas Colson:

But that got me thinking about another famous Swiss mark, which is Swiss Miss, which I grew up with. In fact, Swiss Miss started the same year I was born, 1963.

Raymond Guarnieri:

Hot chocolate, right?

Thomas Colson:

Hot chocolate. What do you mean hot chocolate, right? Of course it’s hot chocolate. Come on, Ray.

Raymond Guarnieri:

You’re a big hot chocolate guy.

Thomas Colson:

I am. That’s right because-

Raymond Guarnieri:

I’ve never been too into it. I mean, I like it. Don’t get me wrong.

Thomas Colson:

That’s my replacement for coffee because I’ve never had a cup of coffee in my life, but anyway-

Raymond Guarnieri:

I’m sorry.

Thomas Colson:

Anyway, so-

Raymond Guarnieri:

That’s just amazingly mind blowing. Okay. Anyone who’s listening right now, I know this is not about us, this podcast, but how do you go your whole life having never having a cup of coffee? All right. Don’t answer that question. Let’s move on.

Thomas Colson:

Okay. Okay. So anyway, Swiss Miss. I was thinking, what about that? To me that is more in the area of false advertising because Swiss Miss has nothing to do with Switzerland, right? In fact, so I did a little research on Swiss Miss, and it was founded in the 1950s. Somebody named Anthony Sanna who started a company called Sanna Dairies in Wisconsin. He and his sons started Swiss Miss. And there was a news article in 1963 that said the chocolate flavor developed by Sanna Dairies is reminiscent of Swiss milk chocolate, okay? So they actually have people talking about how it’s reminiscent of Swiss milk chocolate, and you know the Swiss are known for their chocolate, right?

Raymond Guarnieri:

Right. Yeah.

Thomas Colson:

So to me, to call your company Swiss Miss is really pushing toward the edge of whether it’s false advertising. I grew up, and they even have a woman on the box, at least when I was a little kid, and I thought she was Swiss. I thought this was how-

Raymond Guarnieri:

She’s a Swiss miss.

Thomas Colson:

Yes, exactly. So to me, Swiss Labs is totally fine. Swiss Miss, which by the way, is now owned by Conagra Foods, that one would have been false advertising it seems to me because it’s deceptive. So in the US there’s a thing called the Lanham Act. And the Lanham Act essentially governs the federal trademark stuff, right? And there are rules that you can’t have deceptive trademarks, which are false advertising, right? And the PTO, the United States Patent and Trademark Office will actually reject marks because they are deceptive. They give the false impression. They’re false advertising, right?

Thomas Colson:

So I’ll give a few examples. Like you mentioned, we’re going to do the 20 most mind-blowing ones. Some of these I can’t even really pronounce so I’m going to do the ones I can pronounce first, okay? So here’s a case for Mylanta Nighttime Strength, okay? Mylanta Nighttime Strength. That’s the trademark. So the Third Circuit affirmed a grant of a preliminary injunction against the mark because the mark necessarily implies a false message that over the counter heartburn product was specifically formulated for nighttime relief, or that the product provided all night relief, which it didn’t. So Mylanta Nighttime Strength got banged by the Third Circuit, because they were false advertising.

Thomas Colson:

Another one is good is BreathAsure, okay? The Third Circuit, again, they affirmed a grant of a preliminary injunction. They held that the product name deceptively assured its users that they would have fresh breath after using the product, despite having no scientific substantiation to support that assurance, right? To me though, if I’m thinking about it like puffery versus false advertising, it seems like BreathAsure, that’s more puffery, right? I mean, no one that buys BreathAsure is going to think that it’s anything more than gum or Altoids, or something, right?

Raymond Guarnieri:

I mean, I don’t know what other people feel. I can only speak for myself. I mean, you’re big on oral hygiene. And so am I. Like brushing our teeth regularly. I use mouthwash and floss and all this stuff. Nothing can ever fully prevent you, or provide you the assurance that you’ll never have bad breath.

Thomas Colson:

Right. Right. Exactly. I know.

Raymond Guarnieri:

The only people-

Thomas Colson:

We all know that.

Raymond Guarnieri:

… who don’t have bad breath ever are people who are paranoid about having bad breath.

Thomas Colson:

Right. But BreathAsure, I don’t know. I mean, that doesn’t seem like it crosses the line to me, but the Third Circuit disagrees with me on that.

Raymond Guarnieri:

Yeah. I don’t know.

Thomas Colson:

Yeah. So let’s do another one. Let’s see. America’s Favorite Pasta. What do you think? Is that-

Raymond Guarnieri:

Puffery.

Thomas Colson:

The US Eighth Circuit Court dealt with that slogan. America’s Favorite Pasta.

Raymond Guarnieri:

Puffery.

Thomas Colson:

What do you think?

Raymond Guarnieri:

I mean, well-

Thomas Colson:

Puffery.

Raymond Guarnieri:

Yeah. Because it’s like, well, I used to live in New York City. There’s all these little diners and cafes that say best cup of coffee in New York. No one believes that.

Thomas Colson:

You and the Eighth Circuit Court of Appeals have that in common because they also said it was non-actionable puffery. Okay? So you were right. I mean, if they’re right, you’re right. But I agree with you, right? Okay. What about there was an action against a trademark Barbecue Beans. Now the product has three types of beans, but no meat.

Raymond Guarnieri:

Do they use a barbecue sauce?

Thomas Colson:

Yes.

Raymond Guarnieri:

So they’re barbecue flavored beans?

Thomas Colson:

Yeah, exactly. So the court said, it’s not deceptive.

Raymond Guarnieri:

Yeah. I was going to say, I don’t even think that’s even puffery.

Thomas Colson:

Well, the claim against them was that barbecue is meat. Yeah.

Raymond Guarnieri:

Okay. Here’s what I want to know. Who was upset enough about this that they brought them to court in the first place?

Thomas Colson:

We’ve got one trademark coming up that you’re going to ask that same question. Who was upset about this? But this isn’t the one. The next one is Tito’s Handmade Vodka. The argument is they don’t make it by hand. It’s made with a machine. Is that deceptive or not? Oh, it was a class action. Oh, it’s pending. It’s a pending consumer class action. So I don’t know the outcome yet. What do you think the outcome will be? Tito’s Handmade Vodka. The argument is that it’s not made by hand, but rather through a mechanized process.

Raymond Guarnieri:

I mean, I got to say, I think, unless you were buying it from your cousin who made it in their barn, I don’t think anyone would go to a liquor store thinking they were buying vodka that was handmade.

Thomas Colson:

I don’t either, especially Tito’s, which is well-known brand.

Raymond Guarnieri:

To me, that’s just sort of, oh, it’s like a home-style recipe that we made. And that’s how I would interpret the handmade part. But I don’t know.

Thomas Colson:

But then the other side I’d say is, wait, that’s bullshit. You can’t say it’s handmade. It’s mechanized.

Raymond Guarnieri:

I guess. Yeah. Well, is some part of the process handmade?

Thomas Colson:

Yeah. I don’t know. I don’t even drink vodka, but much less make it.

Raymond Guarnieri:

And I got to say, by the way, I’m not a big drinker, but if I drink, I’ll have a vodka drink of some kind. And I wouldn’t choose my vodka based on whether or not it was handmade ever.

Thomas Colson:

Right. Yeah. Because you’re probably someone who might order a vodka drink at a bar versus going to the liquor store and buying a bottle of vodka, right? But if you were the kind of person who went to a bar to buy a bottle of vodka, and you saw, I don’t know, what’s another kind of vodka. This is really bad. We don’t know anything about alcohol.

Raymond Guarnieri:

Okay. Well, I do know something about vodka, and I know it because of an NPR, it was a recording, a podcast.

Thomas Colson:

Grey Goose.

Raymond Guarnieri:

Yes.

Thomas Colson:

That’s another vodka.

Raymond Guarnieri:

They did this thing on Grey Goose. And basically the conclusion was because of the way vodka is regulated, it’s all the same.

Thomas Colson:

Yeah. Right. Yes. That’s right.

Raymond Guarnieri:

It’s all basically the same because of all the ways you can make it. There’s a limited number of ways you can make it. And so the difference between Grey Goose and a $7 liter of vodka or something, it’s really not all that much.

Thomas Colson:

Yeah. By the way, I think I heard that thing on NPR. And I think maybe that’s one of us told the other one about it.

Raymond Guarnieri:

Michael sent it to me. Our colleague, Mike Inglisa sent it to me.

Thomas Colson:

Grey Goose, apparently the guy who founded Grey Goose, he knew that, but he wanted it to be all about brand. And he wanted to charge twice as much as everyone else. And he heard that vodka made in France was the best in the world. So he set up shop in France. And his whole marketing plan was charge twice as much as everybody else. That was his marketing plan. And he could say that it was made in-

Raymond Guarnieri:

It works.

Thomas Colson:

… but that’s also, that would be false advertising. If you had vodka, like French is Best or something, or France’s Best Vodka.

Raymond Guarnieri:

If you made it in Buffalo, New York.

Thomas Colson:

Yeah, exactly. But Tito’s Handmade Vodka, I don’t know how that one will go. But I don’t know, they might have a problem because it’s certainly not handmade when you’re at that level, right?

Raymond Guarnieri:

Yeah. I don’t know. I don’t know. Unless they could get away with there some part of the process. Like we crank the levers on the machines with our hands.

Thomas Colson:

Yeah, right. Right, right, yeah. Right. Okay. So let’s see. Here’s another one that’s a little bit more complicated. Polysapphire. The Second Court held that the mark Polysapphire facially false as a product name for polycrystalline aluminum oxide orthodontic bracket. So they said it was just not true. It didn’t have polysapphire in it.

Raymond Guarnieri:

What is it? What is polysapphire?

Thomas Colson:

I guess, it’s a orthodontic bracket. So I guess it’s like something that goes into your mouth. But I don’t know. Let’s see. Okay. So let’s go to some PTO ones. PTO rejected Lovee Lamb, L-O-V-E-E, Lamb, L-A-M-B. Held deceptive for seat covers not made of lambskin. What do you think? Lovee Lamb.

Raymond Guarnieri:

Are they car seat covers, or just regular-

Thomas Colson:

Yeah. Seat covers that are not made of lambskin.

Raymond Guarnieri:

I guess it would depend on if they were meant to imitate lambskin.

Thomas Colson:

Yeah. Or it’s just Lovee Lamb is like a soft… When I think of a Lovee Lamb, I think of a soft seat.

Raymond Guarnieri:

Right, right. I was almost thinking, as you’re saying the name of some of these, I’m trying to guess what they are.

Thomas Colson:

Yes. Yes. Because that goes with the descriptive suggestive thing, right?

Raymond Guarnieri:

Right. And so for that one, I was expecting a plush doll for a child or a car seat for a car. So when you said seat covers, I was like, oh, okay. That makes sense. I don’t know why I got car seat.

Thomas Colson:

Okay. What about White Jasmine?

Raymond Guarnieri:

White Jasmine?

Thomas Colson:

It’s tea. White Jasmine. It does not include white tea.

Raymond Guarnieri:

False advertising.

Thomas Colson:

All right. You agree with the PTO on that. Okay. What about Super Silk? It’s fabric, but it’s silk-like. It’s not actually silk. No. It’s clothing made from silk-like fabric.

Raymond Guarnieri:

I think they’d have to have a disclaimer that says it’s not silk.

Thomas Colson:

Yeah. Well, the USPTO said it was deceptive. Okay. How about Napa Valley Mustard Co. Mustard, they make mustard, okay? But they don’t make it in Napa Valley, California. In fact, they don’t make it an Napa Valley anywhere.

Raymond Guarnieri:

Deceptive.

Thomas Colson:

Deceptive.

Raymond Guarnieri:

Because Napa Valley, it’s a nice area, and I would expect it to be this organic, expensive frankly, but probably good mustard, like a Gray Poupon. You know the Grey Poupon commercials?

Thomas Colson:

Yeah.

Raymond Guarnieri:

Do you have any Grey Poupon? I would expect Napa Valley Mustard to have that connotation.

Thomas Colson:

Yeah. So you’d be right. You’d be in alignment with the USPTO on that one. Okay. So recreational vehicles called Titanium that do not contain any titanium.

Raymond Guarnieri:

Recreational vehicle. So it’s the name of an RV?

Thomas Colson:

Yeah. So imagine it’s a name of an RV called Titanium, but it’s not made out of titanium.

Raymond Guarnieri:

To me, that’s like RV names are like boat names. Well boat names are different, but in the same mindset.

Thomas Colson:

In other words, they have nothing to do with what they’re made of.

Raymond Guarnieri:

No. Right.

Thomas Colson:

More about the people than the boats. Except this is not somebody naming their RV. It’s the product name for a product line for the RV.

Raymond Guarnieri:

What about Denali as a vehicle, like a motor vehicle?

Thomas Colson:

Yeah. But it’s not from Denali. Right. No listen I-

Raymond Guarnieri:

Or Chevy Colorado. They’re not made in Colorado.

Thomas Colson:

So your attitude is Titanium as a product line for RVs is okay.

Raymond Guarnieri:

Wait, they said it was okay?

Thomas Colson:

No, I’m asking you.

Raymond Guarnieri:

Oh. Yeah. Yeah, yeah. I wouldn’t expect there to be any titanium in it if I was buying that RV.

Thomas Colson:

Right. Well, the USPTO disagrees. They said it was deceptive because it doesn’t contain titanium. I agree with you though. It’s just a cool name. Right? It’s a cool name. Titanium’s a cool name. And there’s a song that I think it has the word titanium in it that’s really popular. Okay.

Raymond Guarnieri:

I don’t know.

Thomas Colson:

So anyway, so there was a consumer class action filed in the California Federal Court alleging that the Diet Coke mark deceived consumers into believing that the product would assist in weight loss. How do you think they fared in that?

Raymond Guarnieri:

Okay. So first of all, I would love to have either of the major soda companies as customers of ours. But I got to say, I don’t drink it at all.

Thomas Colson:

But if it Diet Coke though, their argument is it’s deceptive because it gives the impression that you’ll lose weight.

Raymond Guarnieri:

If I were a drinker of pop, of soda, we call it pop up here in Buffalo, New York, my thought would be, okay, I’ll stop drinking Coke and drink Diet Coke because it’s less calories. Wait, did you say Coke or Pepsi?

Thomas Colson:

I said, Coke.

Raymond Guarnieri:

Coke. Diet Coke. Because it’s less calories so-

Thomas Colson:

Well the court said-

Raymond Guarnieri:

… less calories, I could lose weight because I’m consuming less.

Thomas Colson:

Right. The court said that everybody knows that Diet Coke merely deletes the calories usually present in regular Coke. And that the caloric reduction will lead to weight loss only as part of an overall sensible diet and exercise regimen, depending upon an individual’s metabolism. So you win the award for that one. Good job, Ray. And they also sued Diet Dr. Pepper.

Raymond Guarnieri:

You know what’s so funny about this, it’s like the fact that this had to go through the court system, this one in particular, because doesn’t it seem like common sense?

Thomas Colson:

Yeah. We’re going to do three more, and then we’ll wrap up. The third one is the one that you’re going to wonder about common sense. Okay? So the next one is Plasma, which was a nutritional supplement. And there was a question that it went up to the Trademark Trial and Appeal Board as to whether the refusal was acceptable. They refused the mark because it didn’t have any plasma product or protein in it. It had no plasma protein in it, but it’s called Plasma. And it went up to the TTAB.

Raymond Guarnieri:

Okay. Isn’t plasma technically also a state of matter? There’s-

Thomas Colson:

Oh, yes. Right.

Raymond Guarnieri:

… [crosstalk 00:22:28] related to plasma.

Thomas Colson:

I forgot about that. Yeah.

Raymond Guarnieri:

I know the whole plasma, with blood plasma and all that, but I don’t know. I don’t know about this one. I don’t have a…

Thomas Colson:

Well, the TTAB affirmed the refusal saying that it had to have plasma protein in it to use it in diet supplements. And I’m guessing they’re pretty sensitive about dietary supplements because those things are always a little sketchy anyway, right?

Raymond Guarnieri:

Right. Yeah.

Thomas Colson:

Okay.

Raymond Guarnieri:

That makes sense.

Thomas Colson:

So the next one is the next one is, so there’s a National Advertising Director, or Association or something. It’s part of the Better Business Bureau, I think. They raised an objection against Fungi-Nail. F-U-N-G-I. Is that Fungi-Nail or Fungi-Nail?

Raymond Guarnieri:

Fungi?

Thomas Colson:

What’s that, fungi, or fungi?

Raymond Guarnieri:

I don’t know how you pronounce that word.

Thomas Colson:

Yeah. But anyway, so Fungi, or Fungi, or Fungi-Nail, Toe, and Foot for, let’s see, oh, because they said that it’s saying that it effectively treats toenail fungus, and it doesn’t.

Raymond Guarnieri:

That’s deceptive.

Thomas Colson:

That seems deceptive. All right. The final one, and then we’ll wrap up. Subway was sued because their foot long sub wasn’t exactly 12 inches. Somebody must’ve come out with a ruler.

Raymond Guarnieri:

You’re right. Yeah.

Thomas Colson:

They’re eating their tuna sub, which doesn’t have real tuna in it. Did you see that article recently?

Raymond Guarnieri:

Wait, really?

Thomas Colson:

Yeah. By the way, I love Subway tuna subs. I’m eating them all the time.

Raymond Guarnieri:

I know. You get them all the time.

Thomas Colson:

And then there was just an article that said that Subway doesn’t actually have tuna in their tuna.

Raymond Guarnieri:

How do you have a tuna sub with no tuna in it? What is it?

Thomas Colson:

But I guess you have to have tuna like 30% tuna or something. And I don’t know. But that’s not this one.

Raymond Guarnieri:

What’s the other 70%?

Thomas Colson:

This is the 12 inches. And I’m going to go have a Subway sub today after this meeting because I love Subway subs.

Raymond Guarnieri:

Wait, hold on a second. It’s not it’s like 70% other fish, right? They’re not talking about the mayo and seasoning and stuff they put on it.

Thomas Colson:

No. Other stuff like horse hooves. No, I’m totally kidding. I’m totally kidding. I have no idea what that means. I have no idea what 30%… And by the way, I only heard this-

Raymond Guarnieri:

But who cares if it’s a foot or not?

Thomas Colson:

I only heard this from a Subway worker. I mean, I read the article, and I was goofing around when I went in, and I said, “Hey, can I have a tuna sub, or whatever it is that’s in there.” He immediately started laughing because he had read the article. And he said, “It’s such BS.” He said, “There’s rules. And we follow the rules,” and all this stuff. And I said, “Look, I don’t care what’s in it. It tastes good. And I want one.”

Raymond Guarnieri:

It hasn’t killed me yet. I’ve been eating it for years.

Thomas Colson:

So anyway, I bought my tuna sub. But anyway, so it was settled. It was started in the district court. It had original jurisdiction in the federal district court, and it settled. But one of the participants in the class appealed it. And let’s see, I love the quote from the Seventh Circuit, reversed stating that the settlement was no better than a racket because the lawyers got $525,000. It was no better than a racket. And that the case should have been dismissed out of hand. That’s what the Seventh Circuit said about the Subway 12 inch foot long battle.

Raymond Guarnieri:

Is it more than 12 inches or less? How close is it?

Thomas Colson:

I’m guessing it would be less, otherwise the people wouldn’t have been complaining.

Raymond Guarnieri:

Right. But I don’t know, when I imagine a foot long Subway sub, it’s pretty close to a foot.

Thomas Colson:

Yeah. In fact, when I go, I’m going to bring my ruler, and I’m going to measure them. But to me, you know what that’s a great example of? Either people don’t have enough to do with their time or a lawyer wanted to make some money. And they apparently, they did.

Raymond Guarnieri:

A racket.

Thomas Colson:

They made $525,000.

Raymond Guarnieri:

You should go with your tape measure. And then for every inch less than 12, you say to them that you want a refund-

Thomas Colson:

Of one 12th.

Raymond Guarnieri:

Prorate the cost of the sub-

Thomas Colson:

Yeah. One 12th off.

Raymond Guarnieri:

… by one 12th.

Thomas Colson:

I want one 12th off. Exactly. So anyway, that’s the last one we’re going to talk about. So that is false advertising, puffery, and trademarks that can be false advertising.

Raymond Guarnieri:

I got to say that this is one of the most fun topics because you can run through so many examples like this when it comes to intellectual property. [crosstalk 00:27:03].

Thomas Colson:

And it goes to show you that judges are not infallible. I mean, when you go to court with something like this, it depends a lot on what judge you get. Because you and I have a difference of opinion with the patent office, and with one of the appellate divisions on different cases, and we’re totally normal, right? We’re fairly smart people. But you don’t know what you’re going to get. That’s the crapshoot of litigation. Some cases are really clear, but a lot of them could go either way.

Raymond Guarnieri:

Yeah. That’s an interesting… We should come up with some different cases and situations where I’d love to look at some famous cases, and how they progressed up through courts, and the different rulings.

Thomas Colson:

Yes. Maybe we’ll do that on a podcast.

Raymond Guarnieri:

Yeah. There we go.

Thomas Colson:

All right.

Raymond Guarnieri:

We got the next one. All right. So everyone, if you enjoyed learning about the difference between puffery and false advertising, and running through all of our top 20 most amazing, incredible false advertising and puffery cases, please hit the subscribe button if you’re on YouTube, or we’re on all sorts of other platforms now, Apple Podcasts, Spotify, Stitcher. Wherever you’re listening, hit subscribe, hit like, leave us a review, share your thoughts. And most importantly, share this podcast with other IP loving individuals. So thanks everyone.

Thomas Colson:

See you.