Wysong Corporation v. APN, Incorporated
2:16-cv-11821
E.D. Mich.Jul 20, 2017Background
- Wysong Corporation (plaintiff) sued six pet-food manufacturers/retailers under Section 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 theories: (1) "premium grade" — pictures imply premium cuts though product contains lower-quality parts; (2) "primary species" — pictured animal suggests it is the primary animal ingredient when it is not; (3) "by-product" — pictured premium cuts mislead despite primary ingredient being low-grade by-product.
- The complaints attached hundreds of package photos but generally did not plead how any particular image, in its specific context (size, placement, text, related advertising), unambiguously conveyed the alleged misleading message.
- Defendants moved to dismiss for failure to state a claim; the court allowed Wysong one amendment, which Wysong filed but did not materially augment with context-specific allegations.
- The court dismissed all six amended complaints with prejudice, holding Wysong failed plausibly to plead literal falsity or actual consumer deception and denying leave to replead.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether images on packaging are "literally false" under the Lanham Act | Images of premium cuts/produce necessarily represent that the product contains those premium cuts/ingredients (or in primary species theory, that pictured species is the primary ingredient) | An image alone is ambiguous; reasonable consumers may interpret it as indicating flavor or type of meat, not a specific cut, grade, or primary-ingredient percentage | Dismissed: images not unambiguous statements of fact; literal falsity not plausibly alleged |
| Whether images are "misleading" (true-but-deceptive) requiring proof of actual deception by a substantial portion of the audience | The images tend to deceive reasonable consumers into believing the products contain premium/high-grade ingredients and therefore influence purchasing decisions | Wysong failed to plead actual consumer deception or how context/characteristics of each image would mislead; must plead context and specifics | Dismissed: insufficient allegations of actual deception; context is crucial and Wysong’s broad, image-only pleading fails plausibility standard |
| Whether Wysong may amend again after one opportunity to cure pleadings | Wysong: should be allowed to replead in good faith to add context-specific allegations | Defendants: Wysong already had an opportunity and failed to cure; further amendment would prejudice parties and court resources | Denied: leave to amend denied; dismissal with prejudice because Wysong already had a chance and pleaded no additional specifics |
Key Cases Cited
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (complaint must state a plausible claim; legal conclusions not accepted as true)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (plausibility standard for pleading; more than labels and conclusions required)
- Innovation Ventures, LLC v. N.V.E., Inc., 694 F.3d 723 (6th Cir. 2012) (only unambiguous messages can be literally false; context matters)
- Novartis Consumer Health, Inc. v. Johnson & Johnson-Merck Consumer Pharm. Co., 290 F.3d 578 (3d Cir. 2002) (literal falsity requires an unambiguous claim that is false; consumer inference analysis)
- Scotts Co. v. United Indus. Corp., 315 F.3d 264 (4th Cir. 2002) (illustration that can reasonably be read in multiple ways cannot support literal falsity)
- Pernod Ricard USA LLC v. Bacardi U.S.A., Inc., 653 F.3d 241 (3d Cir. 2011) (reasonable-consumer standard; courts may use common sense and context in false-advertising cases)
- American Council of Certified Podiatric Physicians & Surgeons v. American Bd. of Podiatric Surgery, 185 F.3d 606 (6th Cir. 1999) (elements of Lanham Act false-advertising claim and distinction between literal falsity and misleading statements)
- Begala v. PNC Bank, Ohio, Nat. Ass'n, 214 F.3d 776 (6th Cir. 2000) (court may deny leave to amend where plaintiff already had opportunity and would get advisory opinion rather than fair chance to cure)