“Puff the magic dragon lived by the sea and frolicked in the Autumn mist in a land called Honolee.” Puff The Magic Dragon by Peter, Paul, and Mary
I love satellite radio, although I was late to the party. I resisted taking the plunge, figuring that the programmers at XM/Sirius couldn’t approach, much less duplicate, the eclectic, genre-bending variety provided by my favorite terrestrial station, WXPN in Philadelphia (which I enjoy in D.C. courtesy of the Internet). But when my trusty car expired, I replaced it with a new model that came with a free trial subscription to Sirius/XM. I took me less than the ride home from the dealership to be hooked. Sure, each station might play a limited range of music–but the sheer variety of music across the Sirius/XM spectrum is mind-blowing, not to mention all the news, sports, comedy, and last but not least, Howard Stern. On any given commute, I can be serenaded by old stalwarts like Crosby, Stills, and Nash and Neil Young, their modern-day progeny such as Dawes, Fleet Foxes, and Deer Tick, old-school and Outlaw country from Willie, Waylon, Merle, and McMurtry, and, of course, Elvis, Sinatra, The Boss, The Dead, and Pearl Jam, all of whom have channels devoted to them.
What does any of this have to do with Softrights? Not much I confess. But the other day, while flipping through the satellite dial, I alighted on Peter, Paul, and Mary wistfully singing “Puff The Magic Dragon.” Since I hadn’t heard it in years, I left the station on while my mind absorbed the story of little Jackie and his faithful dragon Puff. Soon, however, my mind began wandering, and as it often does, it wandered far afield, in this case, from Honolee to IP. Yes, Puff the Magic Dragon got me thinking about advertising law, and the concept know as “puffery.”
What is puffery? In ordinary parlance, the word conjures up someone inflating his or her chest while inflating the truth. As a legal term, “puffing” means pretty much the same thing–referring to statements so obviously vague, unrealistic, silly, exaggerated, boastful, or matters of opinion that no reasonable consumer would believe them. An ad that touts something as “better”, “best”, “the greatest”, and “finest” typically signals puffery. Or when an ad uses slippery terms like “helps”, “can be”, “fights”, and “tastes like,” it’s usually a sign that puff is sure to follow.
So what’s the significance of calling an ad puffery? Well, an ad that nobody believes or takes seriously cannot be considered false or misleading and thus should be immune from liability under the Lanham Act and state laws that prohibit false and misleading advertising.
But when it comes to IP law, there’s often a rub. One person’s “puffery” can often be someone else’s falsehood and can provoke a lawsuit. And indeed, the casebooks are replete with court decisions where Solomonic judges and juries have been called on to separate the false advertising wheat from the puffery chaff (or vice versa). And so, these claims have sparked lawsuits, even though all were eventually found to be puffery, not misleading: advertising a computer accessory as “redesigned and improved”; the slogans “AMERICA’S FAVORITE PASTA” and “Better Ingredients, Better Pizza”; Blue Cross/Blue Shield’s claim that its health coverage was “better than” a health maintenance organization; advertising a computerized chess game as “new” and “new technology” and “like having Karpov as your opponent”; Claiming “unprecedented clarity” in a laboratory computer imaging device used to study cells to detect cancer; Abercrombie & Fitch’s claim “Our most original pant since 1892 … Pure Abercrombie & Fitch design and fit”; the claim that Speedo suits help swimmers compete at the highest level; promoting POWERADE as “The Complete Sports Drink” ; and claims that HUGGIES diapers had a “natural fit” and “fit more naturally.” Each of these claims ultimately was found to be innocuous, benign, harmless, hyperbole, subjective, or mere opinion. But the advertisers had to put up a legal fight to defend these boastful ads.
So what’s an advertiser to do? For one thing, make sure you can prove any specific, verifiable claims about product performance or capability. And if your goal is to achieve “puffery” status, go big with your hyperbole, or be prepared to go to court.
QUOTE OF THE DAY: “The deepest thing in any one is the conviction of the bad luck that follows boasting.”