Antitrust Law Daily Wrap Up, ADVERTISING—E.D. Pa.: Tyson Foods knocks hotdog false advertising claims out of court, (May 11, 2016)

By Jody Coultas, J.

The federal district court in Philadelphia granted Tyson Foods, Inc. summary judgment on Lanham Act false advertising and trademark infringement claims filed by competitor Parks, LLC. The court held that Tyson’s use of the “Park’s Finest” name on the packaging for their product or their advertisements did not deceive consumers, and Parks’ name did not possess secondary meaning (Parks, LLC v. Tyson Foods, Inc., May 10, 2016, Leeson, J.).

Parks sells sausages and other food products under the “Parks” brand. Tyson and Hillshire Brands sell frankfurters under the “Ball Park” trademark. In 2014, Tyson and Hillshire launched a new line of “super-premium” frankfurters under the name “Park’s Finest.” Parks filed suit for infringement and false advertising.

Defendants moved for summary judgment. Parks conceded that it was unable to state claims for trademark dilution and violation of the Pennsylvania Unfair Trade Practices and Consumer Protection Law.

False advertising. The Lanham Act prohibits misrepresentations that cause confusion as to the affiliation of a person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person. Defendants’ use of the name “Park’s Finest” would only be deceptive if the word “Parks” differentiated Parks’ products from those sold by other companies. Because the claim hinged on whether Parks was able to establish that “Parks” functions as a trademark in the minds of consumers, the proper analytical framework was the law of trademarks.

Even if false advertising law applied, the court would find that use of the “Park’s Finest” name on Tyson’s packaging did not have a tendency to deceive a substantial portion of their intended audience. Even a consumer familiar with Parks’ brand would not inevitably believe that the “Park’s” in “Park’s Finest” was a reference to Parks rather than to Tyson’s “Ball Park” brand, given that the “Ball Park” name was directly integrated into both the Park’s Finest wordmark and the script of the advertisements. Because the “Park’s Finest” name could have several meanings, the advertisements were not literally false.

Tyson’s use of “Park’s Finest” was not likely to deceive a substantial portion of the intended audience. “[A] well-designed consumer survey first asks ‘communication’ questions to see what messages the viewer got and to ‘filter’ or separate those viewers who received certain messages from those who did not,” and then “asks those who received a particular message . . . ‘comprehension’ questions to determine what the viewers thought the message meant.” A survey presented by Tyson found that only one in two hundred people mistakenly believed that Defendants’ Park’s Finest product originated with Parks. Parks’ survey was rejected by the court as having multiple flaws. The survey did not illustrate whether the consumer would receive the false message that the product originated with, or was affiliated with, Parks. More importantly, the survey effectively assumed that the “Parks” name possessed secondary meaning among the audience for Defendants’ Park’s Finest product. Finally, the survey was not directed at the appropriate universe of consumers.

Trademark infringement. If a mark is not federally registered, “validity depends upon proof of secondary meaning, unless the unregistered . . . mark is inherently distinctive.” Secondary meaning exists when the mark not only identifies a product or services, but represents the origin of those products or services.

Parks was unable to show that its “Parks” name possessed secondary meaning, according to the court. Parks does not sell any products directly, but rather licensed the “Parks” name to Dietz & Watson and Super Bakery, Inc. The Parks brand was not heavily advertised by Parks or the licensees. Dietz & Watson spent approximately only $14,000 per year on circular advertisements and product demonstrations, and Super Bakery sells Parks-branded products predominantly to the United States military. Sales by the licensees represented less than 1 percent of the relevant markets, making it impossible to infer that the “Parks” mark possessed secondary meaning in the Eastern United States. There was also no evidence that Defendants chose the “Park’s Finest” name with the intent to copy the “Parks” name. Parks only presented a handful of alleged instances of actual confusion.

Parks contends that the survey it conducted, which detected a “consumer confusion rate of 32.7%,” also constitutes evidence of secondary meaning because “proof of one is proof of the other.” However, even if a survey participant had never before heard of the “Parks” name, that participant could still respond that he or she believed that the two products were connected simply based on the participant’s review of the product images. As a result, the rate of confusion was not necessarily correlated to secondary meaning.

The case is No. 5:15-cv-00946.

Attorneys: James Charles McConnon (The Paul Law Firm) for Parks, LLC. John J. Dabney (McDermott Will and Emery LLP) for Tyson Foods, Inc. and Hillshire Brands Co.

Companies: Parks, LLC; Tyson Foods, Inc.; Hillshire Brands Company

Cases: Advertising PennsylvaniaNews