Bimbo Bakeries Sues United States Bakery Under Lanham Act & More News Here

For a client, the phrases “Fresh. Local. Quality.” hooked up to a product may draw connotations of craft beer, artisan items or farm-to-table eating places. But might a competitor sue below the Lanham Act if these “local” items are literally shipped over from a neighboring state? When the Tenth Circuit Court of Appeals lately evaluated these phrases used to advertise a bakery’s bread, it deemed the tagline not actionable as false promoting and merely opinion. An absence of “verifiable factual meaning” prevented the phrases from being deemed true or false — it doesn’t matter what the tagline may evoke.^[i]

Along with bringing commerce secret theft and commerce gown infringement claims, Bimbo Bakeries USA, Inc. (Bimbo Bakeries) alleged that United States Bakery (US Bakery) engaged in false promoting when it used the tagline “Fresh. Local. Quality.” to promote US Bakery’s bread in shops and on its supply vehicles. Following a trial during which Bimbo Bakeries offered survey proof on what shoppers believed “local” meant, a jury deemed US Bakery’s tagline false promoting and awarded Bimbo Bakeries over $8 million in damages. On evaluation, the Tenth Circuit was unimpressed with the result.

Bimbo Bakeries centered its argument on the truth that US Bakeries claimed its bread was “local.” However, US Bakeries baked a few of its bread outdoors of the states during which they have been offered. This was true for the loaves offered in California in addition to in Utah following a bakery closure in that state. Through client survey proof, Bimbo Bakeries outlined “local” as “baked in-state” and argued that every one out-of-state bread was due to this fact falsely marketed as “local.”

The appellate panel assessed that “Bimbo Bakeries’ survey, which asked consumers about the meaning of ‘local,’ cannot somehow convert the word into a statement of fact” and that “the word ‘local’ cannot be adjudged true or false . . . .”^[ii]

Only statements of reality are actionable below the Lanham Act.^[iii] A plaintiff alleging false promoting should show that the promotional assertion is both false or deceptive. And solely factual statements are inherently in a position to be confirmed true or false.

“Local” proved particularly difficult for the Court attributable to definitions failing to supply how giant that space or place may be. The dictionary definitions supplied by Bimbo Bakeries — “relating to or occurring in a particular area, city, or town” and “pertaining to or characterized by place or position in space; spatial” — had no clear outer boundary.^[iv] “In the absence of mile markers, literal or figurative, we are unable to assess a locality claim as a factual matter. We are left with the conclusion that ‘local’ is simply a statement of opinion with which others may agree or disagree without generating legal liability.”^[v]

Opinion — Something Other Than Puffery?

The Court deemed “quality” as “quintessential puffery outside the Lanham Act,” however the panel didn’t describe “local” as puffery.^[vi] Puffery, which has lengthy been deemed non-actionable below the Lanham Act, “is an exaggeration or overstatement expressed in broad, vague, and commendatory language.”^[vii] Claims deemed puffery are usually ones of product superiority corresponding to “America’s Favorite Pasta,” and it’s not clear that “local” essentially matches that class of bragging or boasting.^[viii]

In the Southern District of California, a district court docket assessed the same scenario: Whether a brewer describing its beer as “artfully crafted” was actionable below California’s unfair competitors legal guidelines.^[ix] That court docket concluded that the assertion lacked a selected which means and merely said the brewer’s subjective opinion on its beer, permitting the brewer to flee legal responsibility.

There is not any exhausting line between opinion and puffery although. A latest Ninth Circuit Court of Appeals choice deemed a five-star score system in a guidebook to be unquantifiable assertions which can be “classic, non-actionable opinions or puffery.”^[x]

Context Can Create Factual Statements from Opinion

The evaluation can not cease there. What seems to be puffery or opinion may be reworked into verifiable reality relying on the context. In a authorized battle between pizza chains, the tagline “Better Ingredients–Better Pizza” seems on its face to be innocuous puffery. However, when the road was used as half of a bigger, comparative advert marketing campaign towards its rival, the Fifth Circuit Court of Appeals held that opinion had reworked into a press release of reality within the thoughts of an inexpensive client: The “better pizza” got here from particular, “better ingredients.” Because the promoting defined that the pizza comes from recognized recent substances, recent dough, and filtered water, the Court of Appeals felt that context had outlined “better.” As a consequence, the tagline took on the “characteristics of a statement of fact.”^[xi]

In Bimbo Bakeries, the Court discovered that even when contemplating all of the context, your complete tagline “is simply US Bakery’s opinion about its product.”^[xii] The generality and subjectivity of “fresh” and “quality” water down no matter particular which means a client may place on “local.” The remainder of the visible promoting context didn’t indicate or present which means to the time period given that there have been no comparative statements to different manufacturers and no reference to a state or metropolis. When the model’s Salt Lake City bakery was lively, it paired the tagline with the slogan “Freshly baked in Utah,” nevertheless it ceased utilizing that when that baking facility closed.

Consumer Misunderstanding Cannot Generate False Advertising Claim Alone

The appellate panel conceded that some section of shoppers might need been misled into believing that US Bakeries baked its bread in state: “But not every subjective interpretation of ambiguous language is actionable false advertising.”^[xiii]

Quoting the Eighth Circuit’s opinion on “America’s Favorite Pasta,” the panel famous that “the Lanham Act protects against misleading and false statements of fact, not misunderstood statements.”^[xiv] It summarily concluded, “When the language in question is incapable of objective verification as to truth or falsity, it is not a statement of fact, and no amount of misunderstanding will give rise to an action under the Lanham Act.”

FOOTNOTES

[i] Bimbo Bakeries USA, Inc. v. Sycamore, 29 F.4th 630, 644–45 (tenth Cir. 2022) (emphasis in unique).

[ii] Id.

[iii] Verisign, Inc. v. XYZ.COM LLC, 848 F.3d 292, 302 (4th Cir. 2017) (“[I]n order to be ‘false’ in any way cognizable under the Lanham Act, a statement must also be one of fact.”).

[iv] Bimbo Bakeries, 29 F.4th at 645.

[v] Id.

[vi] Id. at 647.

[vii] Castrol Inc. v. Pennzoil Co., 987 F.2nd 939, 945 (3d Cir. 1993).

[viii] Am. Italian Pasta Co. v. New World Pasta Co., 371 F.3d 387 (eighth Cir. 2004).

[ix] Parent v. MillerCoors LLC, No. 3:15-CV-1204-GPC-WVG, 2015 WL 6455752, at *9 (S.D. Cal. Oct. 26, 2015).

[x] Ariix, LLC v. NutriSearch Corp., 985 F.3d 1107, 1121 (ninth Cir. 2021) (quoting Prager Univ. v. Google LLC, 951 F.3d 991, 1000 (ninth Cir. 2020)).

[xi] Pizza Hut, Inc. v. Papa John’s Int’l, Inc., 227 F.3d 489, 501–02 (fifth Cir. 2000).

[xii] Bimbo Bakeries, 29 F.4th at 647.

[xiii] Id.

[xiv] Id. at 646 (quoting Am. Italian Pasta Co. v. New World Pasta Co., 371 F.3d 387, 393–94 (eighth Cir. 2004)).

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