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New note on puffery and images

By Rebecca Tushnet

Owen Weaver, Everything You Will Ever Want To Know About Puffery and How the Second Circuit Wrongly Applied It in Time Warner Cable, Inc. v. DIRECTV, Inc., 43 New Eng. L. Rev. 357 (2009)

Abstract:

In Time Warner Cable, Inc. v. DIRECTV, Time Warner Cable alleged that DIRECTV's ?Source Matters? advertising campaign, which consisted of television commercials and Internet banner advertisements, constituted false advertising under the Lanham Act. DIRECTV argued in defense that both forms of advertisements constituted puffery and therefore were not false advertising. The United States Court of Appeals for the Second Circuit agreed in part, finding that only the Internet banner advertisements constituted puffery. But in order to come to this conclusion the Second Circuit adopted a definition of puffery, with respect to image advertisements, that it had never applied before. This Comment analyzes the Second Circuit's ad hoc use of the Puffery Doctrine and ultimately concludes that the Second Circuit's application was wrong for two reasons. First, the court's formalistic approach created a legal dichotomy between images and words that fosters inconsistent application of the Puffery Doctrine. Second, the court's reliance on the English common law understanding of puffery caused it to ignore the modern understanding that false advertising greatly affects consumer behavior. Consequently, Time Warner Cable, Inc. v. DIRECTV illustrates the need for reform and in particular the need for a uniform definition of puffery. As a solution, this Comment proposes an amendment to the Lanham Act codifying the definition of puffery.

Full post as published by 43(B)log on July 25, 2009 (boomark / email).