http://elizabethwrites.com/blog/2008/05/all-bubble-suit-comments-theyve-made-my.php

http://tushnet.blogspot.com/2008/05/slogan-you-deserve.html

Its common side effects are very much in keeping with the world the House Republicans have striven to build: nausea, apathy, constipation, fatigue, vertigo, sexual dysfunction, sweating, memory loss, and - and I swear I am not making this up – “electric shock-like sensations also called ‘brain zaps.’”

Its less common side effects are equally awesome in their appropriateness.

And when the Food And Drug Administration reviewed the ad copy that included the tagline, “The change you deserve,” it took issue with Wyeth Pharmaceuticals, which manufactures Effexor, saying that the company made “unsubstantiated superiority claims.” Sounds like the GOP have picked an ironically accurate tagline for their efforts!

Democratic lawmakers were no less gleeful. The Washington Post reports:

House Majority Leader Steny Hoyer (D-Md.) called reporters into his office. “Democrats, not drugs, is what the American people need,” he said. He flashed the Effexor side effects on a large flat-screen television. “Nausea, up to 58 percent,” Hoyer said. “Actually it’s higher than that for Republicans.”

For House Republicans, the diagnosis is obvious: They are suffering from Election Anxiety Disorder.

…. And Hoyer didn’t even mention the warning label, which states that patients should be watched to see if they are “becoming agitated, irritable, hostile, aggressive, impulsive, or restless.”

This is an example of a second-comer’s use doing harm to the second-comer. Rather than free riding, which doesn’t seem to have been the GOP’s intent at all, the slogan can easily be tarred with inappropriate connotations. Reciprocally, though this use is clearly not actionable dilution, it’s easy to see how it could harm the brand—Effexor’s been dragged into a political battle that really has nothing to do with it, and the side effects that provide political ammunition might not seem so funny (or so bad) if one were actually treating depression.

Ugh. Naipaul makes me so angry! 

And when in the 1940s middle-class people with no home but the islands began to understand the emptiness they were inheriting (before black people claimed it all) they longed for a local culture, something of their very own, to give them a place in the world.

Seriously.  Who the hell does he think he is?  I would have issues if God himself had said the same thing. Far less some puny Nobel Prize winner.  Doesn't this man have an editor? 

And what really gets me is that he speaks with such authority.  As though his opinion is the only opinion.  As if his words are the only words.  As though he is speaking for the WHOLE WORLD.

If I swore (okay, I do swear), I would say nasty things.  

And I am  only 26 pages into the book.

http://tushnet.blogspot.com/2008/05/100-percent-and-then-some-pom-wonderful.html

Pom Wonderful alleged that Purely Juice falsely advertised its pomegranate juice, made from concentrate, as “100% pomegranate juice” with “no added sugar or sweeteners.” The court of appeals affirmed the denial of a preliminary injunction. Along with questions about FDA regulation, there was conflicting evidence about the facts—apparently different varietals (who knew pomegranates had varietals?), farming practices, and processing methods might affect the lab tests for additional sweeteners. The conclusion that neither side had shown the actual facts made a full trial on the merits necessary.

The court also concluded that the balance of hardships favored the defendant, since granting a preliminary injunction would remove Purely Juice from the marketplace. Given FDA regulations, Purely Juice couldn’t just remove the ads from its label and continue on. Without sufficient evidence that Pom Wonderful’s business was irreparably suffering, the balance of hardships was an independent reason to deny preliminary relief. Pom Wonderful argued that the district court failed to address the public interest, but (1) there were no health risks shown from Purely Juice’s advertising, even if false, and (2) likelihood of success on the merits of a false advertising case itself indicates which way the public interest lies; here it is just unclear.

(This is probably something to take up with the FDA, but really: how can something be “100% pomegranate juice” and also have added ingredients? Is it like Lake Wobegon, where all the juices are above 100%?)

http://tushnet.blogspot.com/2008/05/damn-right-we-changed-it.html

While I was out for a run recently, I saw a new ad for Canadian Club Whisky. The campaign is called “Damn Right Your Dad Drank It,” and features photos of white men doing manly things circa the Seventies.

…. Apparently, the only people invited to the Canadian Club Club are White Males, Ages 18-30, women and people of color need not apply. …. None of this women’s lib, civil rights, limp-wristed liberal bullshit that men are expected to follow these days. ….

Adding insult to injury, visitors to the site are invited to “Put your own dad (or yourself or your friends) into one of our Damn Right ads. It’s downright easy to do, and when you’re done you can download your ad and send it to your friends.” This Ad Maker is where I got the idea for the following project: I was going to remake the ads, but with women.

….As I was working on my version of the Canadian Club ad, I thought, “Hey, wouldn’t it be great if lots of people made new versions of the ad, just like Canadian Club intended, but replacing all the men with women that they find inspiring or influential or whom they love?”

….Put in photos of your own mom, make up new catch phrases, anything at all. Maybe at the end we can send what we have created to Canadian Club and show them how much potential business they’ve lost by not making even one ad catering to women.

Here are a few of my thoughts:

1. Canadian Club would be unlikely to have the same success that Michelob had against the “Michelob Oily” fake ad, despite the fact that these fake ads are arguably more initially confusing, requiring some inspection to distinguish them from genuine Canadian Club ads. Not only have courts tilted substantially toward parody in subsequent years; not only does the purely noncommercial distribution of the ads call into question the applicability of trademark law at all and preclude any dilution claim; but these ads inarguably target Canadian Club’s insulting campaign, rather than being a general satire of environmental degradation.
2. Fanwork creators look at all culture as subject to debate and rewriting. Interpretive and creative skills learned from popular entertainment slide seamlessly into political and social critique outside an entertainment context (though of course they exist there, too).
3. Canadian Club attempted to enable “user-generated content” by allowing some remixes. But the authorized remix site only wants/expects certain people to play, following certain rules, coloring inside the sexist lines. This is a great example of why licensed remixes do not equate to creative freedom.
4. The project explicitly hopes to engage Canadian Club and change the advertiser’s behavior. I raise my glass to you, Michelle Koenig-Schwartz, and hope that Canadian Club gets the point.

http://tushnet.blogspot.com/2008/05/comparative-ads-trigger-advertising.html

Harleysville Mutual Ins. Co. v. Buzz Off Insect Shield, L.L.C., -- S.E.2d --, 2008 WL 1945784 (N.C. App.)

In early 2005, S.C. Johnson sued Buzz Off, a seller of insect-repellent clothing, in federal court, alleging trademark infringement, false advertising, and related claims. IGT, a second defendant, was added to the case after some procedural maneuvers. In 2006, Harleysville sought a declaratory judgment in state court that insurance policies it issued to IGT didn’t provide any coverage in the underlying suit, or in the alternative that Erie, a different insurance company, was on the hook for defense and damages costs. IGT, unsurprisingly, cross- and counterclaimed for a declaration that one or both of the insurance companies had a duty to defend and for a finding of bad faith breach of the duty to defend, while Erie made the same arguments about Harleysville that Harleysville had made about it.

An insurer’s duty to defend is broader than its duty to pay damages; the duty to defend is measured by the facts alleged in the pleadings. The drafting of the complaint isn’t key; the question is whether the facts alleged disclose a possibility that the insured is liable for something covered by the policy. Doubts are resolved in favor of insureds.

Here, IGT was insured for advertising injury. Advertising injury was defined to include publication of “material that slanders or libels a person or organization or disparages a person’s or organization’s goods, products or services” and infringement of another’s copyright, trade dress or slogan in an ad.

S.C. Johnson’s complaint alleged that Buzz Off and IGT made false claims through Buzz Off’s website and the websites of its partners. One such claim specifically named S.C. Johnson’s OFF! Deep Woods product; the rest was directed to all skin-applied insect repellants, a market in which S.C. Johnson leads.

The court found that these allegations were sufficient to create a possibility that IGT was liable for a covered act, triggering a duty to defend. False negative comparisons would come within the disparagement provision.

The dissent found that S.C. Johnson’s allegations fell within a quality/performance exception, which stated that coverage didn’t apply to advertising injury “arising out of the failure of goods, products or services to conform with any statement of quality or performance made in your ‘advertisement’.” However, the crux of S.C. Johnson’s claim was that IGT’s ads disparaged S.C. Johnson’s products, not that IGT’s goods failed to conform with IGT’s statements of quality or performance.

The dissent, by contrast, focused on the positive claims that S.C. Johnson alleged were false. S.C. Johnson mainly targeted Buzz Off’s claims for its own “Insect Repellent Apparel.” Buzz Off claimed that its clothing reduced or eliminated the need to apply insect repellent and that its clothing was superior to topical insect repellents, in part because of the “hassle” of applying “messy” insect repellents. S.C. Johnson also attacked Buzz Off’s claim that the insect-repellant properties of its clothing lasted through 25 washes, and that those properties came from “a version of a natural insecticide.”

The false comparisons at issue, the dissent concluded, were allegedly false and misleading because they overvalued Buzz Off’s products, not because they undervalued S.C. Johnson’s. While the dissent has a point, to me this just highlights the odd way advertising injury policies are worded—false comparative advertising has pretty much the same effects whether the claim is “X is better than Y” or “Y is worse than X.” In any event, the dissent concluded, the claims at issue fell into the failure to perform exception. Even if some of the Buzz Off statements (possibly those regarding DEET, a component of S.C. Johnson’s products) could be interpreted as disparaging, that wasn’t what S.C. Johnson complained about.

That reasoning is in a bit of tension with the idea that the plaintiff’s pleading shouldn’t entirely control if the alleged facts disclose the possibility of coverage, but the dissent did note that complaints often include background information to give context to a dispute, and categorized the ads here as mere background, to the extent that they contained negative implications about S.C. Johnson products.

Because the positive claims about Buzz Off are so tightly intertwined with the negative statements/implications about S.C. Johnson, I think this is foreground rather than background, and thus that the majority has the better of the argument. The exclusion for failure to meet advertised quality should apply to absolute claims; relative claims inherently put competitors’ goodwill at risk. As other Lanham Act cases have pointed out, a consumer who is disappointed with a product sold by a comparative claim may conclude that all the products in the relevant category are bad—after all, if the best one didn’t work, what chance have the others? This conclusion—that comparative ads should be treated as potentially harming the plaintiff, not just as potentially helping the defendant—resolves the “better than”/“worse than” disparity mentioned above, and comports with the cases cited by the dissent, some of which rejected insurance coverage when the advertiser’s claims were all positive and noncomparative.