403 F.Supp.3d 361
S.D.N.Y.2019Background
- Weight Watchers sued Noom alleging false advertising, trademark infringement, and unfair competition based on Noom’s 2018 digital and TV ads that referenced Weight Watchers by name and compared the services.
- Weight Watchers alleges Noom claimed (inter alia) permanent weight loss, superior weight-loss results versus Weight Watchers, and that Noom was “backed by 8 years of research and proven to be effective by several medical journals.”
- Noom moved to dismiss under Rule 12(b)(6), arguing most statements were nonactionable puffery or opinion and that use of the Weight Watchers mark was nominative fair use.
- The complaint reproduced several specific ads (Facebook and at least one TV commercial) and alleged consumer-confusion and false-science claims; Noom submitted research articles and argued the science substantiated its claims.
- The Court evaluated each challenged advertisement category separately and considered whether claims were literally false, impliedly false, puffery, or actionable under the Lanham Act and New York GBL sections 349/350.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether ads comparing Noom to Weight Watchers ("MySpace" theme) are false advertising | Weight Watchers: ads imply Noom yields greater weight loss and that WW is ineffective | Noom: statements are comparative puffery/opinion | Dismissed — statements are vague comparative puffery, not actionable |
| Whether a customer review ad ("Sally W.") is actionable | Weight Watchers: review implies typical results and faster weight loss vs. WW | Noom: ordinary single-customer testimonial; not representative or misleading | Dismissed — a single subjective review is nonactionable and not plausibly representative |
| Whether claims like "Lose weight for good" and "Permanent weight loss" are false | Weight Watchers: 16-week program cannot guarantee permanent loss | Noom: reasonable consumers wouldn’t interpret as guaranteed lifelong results; puffery | Dismissed — claims read as puffery/commendatory marketing, not provable guarantees |
| Whether ads asserting Noom is "backed by 8 years of research" and "proven… by medical journals" are false/misleading | Weight Watchers: Noom relied on small, pilot, non-randomized studies; not "proven" | Noom: published studies support effectiveness; scientific disputes are merits questions | Denied as to dismissal — complaint plausibly alleges falsity re: research-proof claims (actionable) |
| Whether assorted ads alleging WW uses "crash" dieting or that "nothing worked" are false about WW | Weight Watchers: ads imply WW is crash-dieting and ineffective | Noom: statements are vague, hyperbolic, and not specifically imputing methods to WW | Dismissed — viewer would see hyperbole/puffery, not specific factual allegation against WW |
| Whether Noom’s use of the "Weight Watchers" mark ("Weight Watchers 2.0") infringes or misleads | Weight Watchers: use causes consumer confusion, implies affiliation/endorsement | Noom: nominative fair use — necessary comparative reference, limited use, clearly Noom-sponsored | Dismissed — nominative fair use applies; ads do not plausibly suggest sponsorship or source confusion |
| Whether New York GBL claims survive | Weight Watchers: GBL 350/349 parallel Lanham Act false-ad standards | Noom: same defenses as federal law; public-injury element for GBL 349 not met | GBL 350 claim survives only as to research-backed/proven-by-journals ads; GBL 349 and other NY claims dismissed |
Key Cases Cited
- Ashcroft v. Iqbal, 556 U.S. 662 (pleading-standards framework)
- Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (plausibility standard)
- Merck Eprova AG v. Gnosis S.p.A., 760 F.3d 247 (falsity element in Lanham Act claim)
- Tiffany (NJ) Inc. v. eBay Inc., 600 F.3d 93 (nominative fair use principles)
- Time Warner Cable, Inc. v. DIRECTV, Inc., 497 F.3d 144 (puffery doctrine)
- Church & Dwight Co. v. SPD Swiss Precision Diagnostics GmbH, 843 F.3d 48 (implied falsity standard)
- Johnson & Johnson–Merck Consumer Pharm. Co. v. Smithkline Beecham Corp., 960 F.2d 294 (what audience perceives message)
- Groden v. Random House, Inc., 61 F.3d 1045 (opinions not actionable under Lanham Act)
- ONY, Inc. v. Cornerstone Therapeutics, Inc., 720 F.3d 490 (scientific disputes not Lanham falsity)
- Lipton v. Nature Co., 71 F.3d 464 (puffery and subjective claims)
- McNeil-P.C.C., Inc. v. Bristol-Myers Squibb Co., 938 F.2d 1544 (requirement to show tests are unreliable to prove literal falsity)
- Int’l Info. Sys. Sec. Certification Consortium, Inc. v. Security Univ., LLC, 823 F.3d 153 (nominative fair use additional factors)
- Starbucks Corp. v. Wolfe’s Borough Coffee, Inc., 588 F.3d 97 (Polaroid factors overview)
- S.C. Johnson & Son, Inc. v. Clorox Co., 241 F.3d 232 (consider visual imagery in falsity analysis)