Wysong Corp. v. APN, Inc.
266 F. Supp. 3d 1058
E.D. Mich.2017Background
- Wysong, a Michigan pet-food manufacturer, sued six competitors under § 43(a) of the Lanham Act, alleging that images of "premium" meats, fish, poultry, and vegetables on defendants' packaging are false or misleading.
- Wysong advanced three related theories: (1) "premium grade" — pictures depict human-grade cuts though product contains lower-grade parts; (2) "primary species" — packaging shows one species though the primary ingredient is a different species; (3) "by-product" — images show premium cuts though the product primarily contains low-grade by-products.
- Wysong attached hundreds of package photos but made few image‑specific factual allegations about the context, size, placement, surrounding text, or other marketing that might shape consumer impressions.
- Defendants moved to dismiss for failure to state a claim; the court gave Wysong one opportunity to amend and Wysong filed amended complaints that remained largely generalized.
- The court held oral argument, applied Twombly/Iqbal plausibility standards, and dismissed all six amended complaints with prejudice, denying leave to replead.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether images are literally false (premium-grade theory) | Pictures of lamb chops, chicken breasts, steaks, etc., unambiguously represent that the product contains those premium cuts | Images are ambiguous and reasonably read as indicating type or flavor of meat, not a specific cut/grade; literal falsity requires an unambiguous message | Dismissed — images not unambiguously and necessarily read as depicting the exact premium cuts; no literal falsity pleaded plausibly |
| Whether images are literally false (primary-species theory) | Pictures of a particular animal imply that the pictured species is the primary animal ingredient | An image may mean some amount or flavor of that species, not necessarily the primary ingredient; alternative reasonable interpretations exist | Dismissed — images not literally false because they may truthfully indicate presence or flavor of the pictured species |
| Whether images are misleading (actual deception) | Images deceive a substantial portion of reasonable consumers into believing higher-quality or greater-quantity ingredients are present | Plaintiff failed to plead how particular images, given their size, placement, text, and overall package context, would mislead a reasonable consumer | Dismissed — allegations too generalized; context is crucial and Wysong failed to plead image‑specific contextual facts showing likely deception |
| Whether Wysong should get further leave to amend | Wysong said it could add facts to cure deficiencies if given another chance | Defendants relied on the record and prior opportunities; court warned Wysong to address the specific deficiencies in the first amendment | Denied — court had already allowed one amendment, Wysong failed to add required specific contextual allegations, and further amendment would be unjustified |
Key Cases Cited
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (pleading standards require factual plausibility, not conclusions)
- Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) (complaint must state a claim plausible on its face)
- Novartis Consumer Health, Inc. v. Johnson & Johnson–Merck Consumer Pharm. Co., 290 F.3d 578 (3d Cir. 2002) (literal falsity requires an unambiguous claim and whether consumers will necessarily receive that message)
- Innovation Ventures, LLC v. N.V.E., Inc., 694 F.3d 723 (6th Cir. 2012) (only unambiguous advertising claims can be literally false)
- Scotts Co. v. United Indus. Corp., 315 F.3d 264 (4th Cir. 2002) (image that can reasonably bear multiple meanings is not literally false)
- American Council of Certified Podiatric Physicians & Surgeons v. American Bd. of Podiatric Surgery, 185 F.3d 606 (6th Cir. 1999) (elements of a Lanham Act false advertising claim)
- Pernod Ricard USA LLC v. Bacardi U.S.A., Inc., 653 F.3d 241 (3d Cir. 2011) (reasonable consumer standard; context and common sense are important in deception analysis)
- Begala v. PNC Bank, 214 F.3d 776 (6th Cir. 2000) (district court not required to give repeated advisory opportunities to amend)
- Ziegler v. IBP Hog Mkt., Inc., 249 F.3d 509 (6th Cir. 2001) (court must accept factual allegations as true when assessing a Rule 12(b)(6) motion)