Many retailers carry products with the phrase “As Seen on TV.” What if a product bearing that phrase, however, had not actually been seen on TV? A recent case in federal court in the Southern District of New York ponders that question.
In an advertising war between copper cookware competitors, plaintiff Emson sued its competitor Masterpan under the Lanham Act challenging claims made for the “The Original Copper Pan” (“OCP”). These claims included Masterpan’s use of the “As Seen On TV” logo; that the OCP was “original;” and that the OCP was “copper-infused,” “made of ultra-tough copper,” and made with “copper construction.” Emson alleged, among other things, that: (a) Masterpan falsely represented the OCP with its “As Seen On TV” label; (b) Masterpan’s “original” advertising deceived the public into believing that the OCP was the first copper pan of its kind; and (c) Masterpan mischaracterized the amount of copper in the OCP. Emson contended that these false claims diverted sales from Emson’s own “Gotham Steel” products, traded off its goodwill, and deceived consumers. Masterpan moved to dismiss Emson’s claims for lack of personal jurisdiction, improper venue, and failure to state a claim.
Emson claimed Masterpan’s use of an “As Seen On TV” logo was a material misrepresentation that leveraged the goodwill built up by Emson’s Gotham Steel television advertising campaign to create recognition of its products. Not only did Emson allege that this use was misleading, but Emson further alleged that Masterpan either does not market the OCP on TV or that it minimally does so. In denying Masterpan’s motion to dismiss, the court stated discovery will determine whether and to what extent the OCP has been marketed on television. Even if it is literally true that the OCP has been marketed on television, the use of the “As Seen On TV” logo may nevertheless be deemed misleading if the OCP only minimally appeared on TV.
Emson also claimed that Masterpan’s use of the word “original” in its product’s name suggests the OCP is the first of its kind, when in fact there were many copper pots and pans already on the market. For purposes of the motion to dismiss, the court agreed with Emson. In addition, the court found that Emson, based on its own tests of Masterpan’s products, had sufficiently alleged that Masterpan’s claims regarding the amount of copper in its products were false and/or misleading.
This battle for stovetop domination highlights some key insights brands would benefit from keeping in mind. Claiming a product is “As Seen On TV” can create risk when the product’s airtime is minimal. Furthermore, the distinction between “original in time” and “original to the brand” is important: take care not to mislead consumers as to the “original” nature of a product. Lastly, when making claims about the makeup of a product, be sure to have sufficient substantiation for those claims such that competitors can’t prove you wrong through their own testing.