Antitrust Law Daily Wrap Up, ADVERTISING—E.D. Pa.: Tyson, Hillshire avoid injunction over “Park’s Finest” hot dogs, (Jul 29, 2015)

By Greg Hammond, J.D.

A company that sells sausages and other processed meats under the “Parks” name could not obtain injunctive relief against Tyson Goods, Inc. and Hillshire Brands Co. for a Lanham Act false advertising claim concerning Tyson and Hillshire’s new line of “Park’s Finest” frankfurters. The federal district court in Allentown, Pennsylvania, denied the motion for injunctive relief, finding that the plaintiff failed to show that Tyson and Hillshire made a literally false statement or that the statements complained of tended to deceive (Parks, LLC v. Tyson Foods, Inc., July 28, 2015, Leeson, J.).

Parks, LLC filed a Lanham Act false advertising, trademark dilution, and unfair competition suit against Tyson and Hillshire, alleging that the defendants’ marketing and selling of their “Park’s Finest” sausages led to the inescapable conclusion that defendants were actually marketing and selling Parks, LLC’s sausages. Parks moved for preliminary injunction based solely on the Lanham Act claims.

Literally false statement. The court first concluded that Parks’ insistence that the “Park’s Finest” name cannot plausibly be understood as a reference to the defendants’ Ball Park brand fails to account for the context in which the name is presented to consumers. Park’s Finest packaging and advertisements intertwine the Park’s Finest name with the Ball Park brand by placing the Ball Park trademark into the Park’s Finest word mark. In addition, television commercials verbally juxtaposed the two names by using the phrase, “Park’s Finest from Ball Park.” In this context, according to the court, the name “Park’s Finest” and phrase “Park’s Finest from Ball Park” plausibly convey to consumers that the Park’s Finest frankfurters are the highest-end product line under the Ball Park brand. Parks therefore failed to show that Tyson and Hillshire made a literally false statement.

Deception. Parks also failed to demonstrate that Tyson’s and Hillshire’s statements tend to deceive. Specifically, the court found that the only evidence produced to suggest that consumers may be deceived by the defendants’ advertising is contained in two declarations, made by employees of affiliated companies. These declarations, however, were insufficient to demonstrate that the Park’s Finest packaging and advertisements have a tendency to deceive a substantial portion of consumers, and the court therefore could not conclude that there is a reasonable likelihood that Parks will succeed on the merits of its false advertising claim.

The case number is 5:15-cv-00946.

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

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

Cases: Advertising PennsylvaniaNews