The district court, without issuing written reasons, denied Papa John's request for special jury interrogatories on these two elements of Pizza Hut's prima facie case. In short, Papa John's has given definition to the word "better." Thus, we conclude by saying that although the ads were true about the ingredients Papa John's used, it is clear that there was sufficient evidence in the record to support the jury's conclusion that Papa John's sauce and dough ads were misleading—but not false—in their suggestion that Papa John's ingredients were superior. In support of the district court's conclusion that the slogan was transformed, Pizza Hut argues that "in construing any advertising statement, the statement must be considered in the overall context in which it appears." Thirty-eight years earlier, Mr. Carney had been a founder of Pizza Hut. We find simply no evidence, survey or otherwise, to support the district court's conclusion that the advertisements that the jury found misleading—ads that constituted only a small fraction of Papa John's use of the slogan—somehow had become encoded in the minds of consumers such that the mention of the slogan reflectively brought to mind the misleading statements conveyed by the sauce and dough ads. Papa John's deliberately and intentionally exploited its slogan as a centerpiece of its subsequent advertising campaign after May 1997 which falsely portrayed Papa John's tomato sauce and pizza dough as being superior to the sauce and dough components used in Pizza Hut's products. 00-10071 Pizza Hut vs. Papa Johns Carney had recently recovered … The appellee, Pizza Hut, Inc., argues that the slogan, when viewed in the context of Papa John's overall advertising campaign, conveys a false statement of fact actionable under section 43(a) of the Lanham Act. A leading authority on unfair competition has defined "puffery" as an "exaggerated advertising, blustering, and boasting upon which no reasonable buyer would rely," or "a general claim of superiority over a comparative product that is so vague, it would be understood as a mere expression of opinion." Although Papa John's 1998 Awareness, Usage & Attitude Tracking Study showed that 48% of the respondents believe that "Papa John's has better ingredients than other national pizza chains," the study failed to indicate whether the conclusions resulted from the advertisements at issue, or from personal eating experiences, or from a combination of both. Nevertheless, the determination of whether an advertising statement should be deemed puffery is driven by the context in which the statement is made. A statement of opinion or belief, on the other hand, conveys the speaker's state of mind, and even though it may be used to attempt to persuade the listener, it is a subjective communication that may be accepted or rejected, but not proven true or false." "When I finally got around to seeing (a store) and tasting the pizza, I understood what he meant," said Carney. Better Pizza." The slogan has appeared on millions of signs, shirts, menus, pizza boxes, napkins and other items, and has regularly appeared as the "tag line" at the end of Papa John's radio and television ads, or with the company logo in printed advertising. Additionally, Papa John's asserted that it gives its yeast "several days to work its magic," while "some folks" use "frozen dough or dough made the same day." Thus, the district court, lacking the necessary factual predicate, abused its discretion in ordering Papa John's to modify these ads. any more quantifiable meaning. In sum, we hold that the slogan "Better Ingredients. The tough part, he said, was telling his wife that mortgaging their home for the funds to get started was their only option. Thus, the district court erred in denying Papa John's motion for judgment as a matter of law.[15]. Consequently, the court concluded that the slogan was misleading and actionable under section 43(a) of the Lanham Act and enjoined its further use. See Presidio Enters., Inc. v. Warner Bros. Distrib. We have interpreted this section of the Lanham Act as providing "protection against a `myriad of deceptive commercial practices,' including false advertising or promotion." "Even when (Hart) said (Carney) was coming here to talk about it, I still thought he was kidding," said Schnatter, whose Louisville, Ky.-based company also broke the 1,000 store mark in 1994, just one year after it went public. One year later, at the displeasure of his brother, Carney became a franchise owner of one of Pizza Hut’s top competitors, Papa John’s, the Associated Press reported. 2000); Resource Developers, 926 F.2d at 139. See Balance Dynamics Corp. v. Schmitt Ind., 204 F.3d 683, 690 (6th Cir. is a general statement of opinion regarding the superiority of its product over all others. During the dough campaign, Papa John's stated that it used "clear filtered water" to make its pizza dough, while the "biggest chain" uses "whatever comes out of the tap." "The Lanham Act does not prohibit false statements generally. Frank Carney was a businessman who co-founded Pizza Hut along with his brother. 1996). Stated differently, the adjective that continues to describe "pizza" is "better," a term that remains unquantifiable, especially when applied to the sense of taste. Thus, it does not constitute a false or misleading statement of fact actionable under section 43(a) of the Lanham Act. ." Rather the statements at issue must be a "specific and measurable claim, capable of being proved false or of being reasonably interpreted as a statement of objective fact." Additionally, consumers preferred Papa John's thin crust pizzas by a fourteen-point margin (57% to 43%). Frank and Dan Carney borrowed $600 from their mother to start Pizza Hut in a 600-square foot former bar, but the pair's humble beginnings didn't last long. This is the old version of the H2O platform and is now read-only. Turning our focus to the dough ads, while the evidence clearly established that Papa John's and Pizza Hut employ different methods in making their pizza dough, again, the evidence established that there is no quantifiable difference between pizza dough produced through the "cold or slow-fermentation method" (used by Papa John's), or the "frozen dough method" (used by Pizza Hut). is expanded and given additional meaning when it is used as the tag line in the misleading sauce and dough ads. The "ingredients" ads found not to be false or misleading did not include any of the "sauce" or "dough" ads. In denying Papa John's motion, the district court, while apparently recognizing that the slogan "Better Ingredients. falls into the latter category, and because the phrases "better ingredients" and "better pizza" are not subject to quantifiable measures, the slogan is non-actionable puffery. Papa John's.” Songs - Add None have been identified for this spot Better Pizza.' We should note again that Pizza Hut does not contest the truthfulness of the underlying factual assertions made by Papa John's in the course of the sauce and dough ads. United States Court of Appeals Fifth Circuit. Spurred by that and other Papa John's commercials, Pizza Hut filed suit claiming the advertisements were false. Reduced to its essence, the question is whether the evidence, viewed in the most favorable light to Pizza Hut, established that Papa John's slogan "Better Ingredients. The plaintiff may not rely on the judge or the jury to determine, "based solely upon his or her own intuitive reaction, whether the advertisement is deceptive." The lessons he learned from those failures, however, ultimately drove him back to his forte: pizza. 1999), noted: On its face, [the statement at issue] does not seem to be the type of vague, general exaggeration which no reasonable person would rely upon in making a purchasing decision. We next will consider whether the use of the slogan "Better Ingredients. In response to Pizza Hut's "scientific evidence," Papa John's asserts that "each of these `claims' involves a matter of common sense choice (fresh versus frozen, canned vegetables and fruit versus remanufactured paste, and filtered versus unfiltered water) about which individual consumers can and do form preferences every day without `scientific' or `expert' assistance.". Although Frank Carney dropped out of Wichita State University, where he studied engineering, … When Hart called to tell him the founder of Pizza Hut wanted in, Schnatter thought he was joking. We agree that the message communicated by the slogan "Better Ingredients. We invite you to share condolences for Frank Carney in our Guest Book. On the heels of the success of the Carney ads, in February 1998, Papa John's launched a second series of ads touting the results of a taste test in which consumers were asked to compare Papa John's and Pizza Hut's pizzas. On August 12, 1998, Pizza Hut filed a civil action in the United States District Court for the Northern District of Texas charging Papa John's with false advertising in violation of Section 43(a)(1)(B) of the Lanham Act. Further, in regard to the dough, Pizza Hut concedes the truth of the assertion that it uses tap water in making its pizza dough, which is often frozen, while Papa John's uses filtered water to make its dough, which is fresh—never frozen. We are obligated to accept the findings of the jury unless the facts point so overwhelmingly in favor of one party that no reasonable person could arrive at a different conclusion. REVERSED, VACATED, and REMANDED with instructions. Better Pizza.' Dec 5, 2020 - When he was 19, Mr. Carney and his brother Dan borrowed $600 from their mother to start their business in Wichita, Kan. Before long it became the world’s largest pizza chain. Although Carney had left the pizza business in the 1980's, he returned as a franchisee of Papa John's because he liked the taste of Papa John's pizza better than any other pizza on the market. In such a circumstance, the court will assume that the statements actually misled consumers. In 1997, Papa John's, seeking to capitalize on Carney's pizza comeback as a Pizza Hut competitor, released a TV commercial in which Carney announced to a mock assembly of Pizza Hut's board that he'd found a pizza better than theirs. [7] Similarly, Prosser and Keeton on Torts defines "puffing" as "a seller's privilege to lie his head off, so long as he says nothing specific, on the theory that no reasonable man would believe him, or that no reasonable man would be influenced by such talk." However, given our clear precedent that once a case is submitted to the jury via special interrogatories, "the judge must submit all material issues raised by the pleadings and the evidence," the correctness of the district court's refusal to submit instructions on these two essential issues is doubtful. As previously discussed, none of the underlying facts supporting Papa John's claims of ingredient superiority made in connection with the slogan were literally false. did not simply bar Papa John's use of the slogan in future ads comparing its sauce and dough with that of its competitors. The Carney ads were removed from the jury's consideration by Pizza Hut, and the jury expressly concluded that the taste test ads were not actionable under section 43(a) of the Lanham Act. and consequently gives some expanded meaning to the phrase "Better Pizza," i.e., our pizza is better because our ingredients are better. Asked to compare his success at Pizza Hut to that he's having now, Carney said he can't because that was a different situation, day and time in the pizza business. [10] The testimony of Pizza Hut's expert, Dr. Faubion, established that although consumers stated a preference for fresh dough rather than frozen dough, when taste tests were conducted, respondents were unable to distinguish between pizza made on fresh as opposed to frozen dough. Similarly, the Ninth Circuit has defined "puffing" as "exaggerated advertising, blustering and boasting upon which no reasonable buyer would rely and is not actionable under 43(a)." The Kansas native succumbed to pneumonia after rebounding from a case of COVID-19, according to news reports. 1999); see also American Council, 185 F.3d at 614 (stating that "a Lanham Act claim must be based upon a statement of fact, not of opinion"). Better Pizza" slogan is false or misleading, and was a false or misleading description or representation of fact which deceived or was likely to deceive a substantial number of the consumers to whom the slogan was directed; (2) Did you find that Papa John's "sauce" claims are false or misleading, and was a false or misleading description or representation of fact which deceived or was likely to deceive a substantial number of the consumers to whom the slogan was directed; and (3) Did you find that Papa John's "dough" claims are false or misleading, and was a false or misleading description or representation of fact which deceived or was likely to deceive a substantial number of the consumers to whom the slogan was directed? Frank Carney, the co-founder of Pizza Hut and a lifelong entrepreneur, died on Wednesday morning at the age of 82, his wife Janie has confirmed. § 1125(a)(1)(B) (West 1999). At the 1999 Pizza Expo in Las Vegas, where Carney was a featured speaker, he told a crowd of about 900 pizzeria operators he had no regrets about speaking out against the company he founded. Spurned by the commercial's message, plus that of others done by Papa John's, Pizza Hut filed suit, claiming Papa John's advertisements were false. United States Court of Appeals, Fifth Circuit. 1227, 1234 n. 3 (S.D.N.Y. advertising campaign with the National Advertising Division of the Better Business Bureau, an industry self-regulatory body. "He's a fine businessman, too, a great partner.". Context will often help to determine whether the statement at issue is so overblown and exaggerated that no reasonable consumer would likely rely upon it. The ad campaign was remarkably successful. He was 82. During the sauce campaign, Papa John's asserted that its sauce was made from "fresh, vine-ripened tomatoes," which were canned through a process called "fresh pack," while its competitors—including Pizza Hut—make their sauce from remanufactured tomato paste. Presidio, 784 F.2d at 679; see also Southland Sod Farms v. Stover Seed Co., 108 F.3d 1134, 1145 (9th Cir. Based on this conclusion, the magistrate judge permanently enjoined Papa John's from "using any slogan in the future that constitutes a recognizable variation of the phrase `Better Ingredients. "They had become an assembly line product company," said Carney. [501] Instead, it is due to a difference in the wheat used to make the dough. Better Pizza." During … Frank was even featured in a Papa John's commercial, in which he entered a Pizza Hut stockholders meeting wearing a Papa John's apron, and said, "Sorry guys, I found a better pizza". Specifically, Papa John's submitted the following proposed jury interrogatories: (1) "Do you find that any false or misleading description or representation of fact in Papa John's Slogan `Better Ingredients. W. Page Keeton, et al., Prosser and Keeton on the Law of Torts § 109, at 757 (5th ed. These definitions of puffery are consistent with the definitions provided by the leading commentaries in trademark law. Drawing guidance from the writings of our sister circuits and the leading [497] commentators, we think that non-actionable "puffery" comes in at least two possible forms: (1) an exaggerated, blustering, and boasting statement upon which no reasonable buyer would be justified in relying; or (2) a general claim of superiority over comparable products that is so vague that it can be understood as nothing more than a mere expression of opinion. Consequently, the slogan as a whole is a statement of non-actionable opinion. Better Pizza." "But I've learned that the tough times made me a better manager and person. Thank you. Cancel Connectez-vous ou créez un compte Trouver un Papa John's près de chez vous Papa fidélité En savoir plus Gagnez des Points Fidélité. 1999)(quoting Aetna Cas. During legal struggles with Pizza Hut in the late 1990s, Papa John’s ran commercial advertisements highlighting the fact, including a dramatization showing Frank Carney [the founder] coming to a … is non-actionable puffery.[8]. [1] Although Papa John's did not object to the submission of the issue of Lanham Act liability to the jury via special interrogatories, it did object to the district court's refusal to submit special interrogatories on the essential elements of materiality and injury. 1997). 1987); 9A Charles A. Wright and Arthur R. Miller, Federal Practice and Procedure § 2506 173-79 (1995)(stating that "all material factual issues should be covered by the questions submitted to enable a verdict to be rendered on the entire dispute on the basis of the jury's response"). Why Your Brand Needs Text Message Marketing in 2021, Time-tested Restaurant Technologies for a New Normal, Cloud POS Prepped a Neighborhood Pizzeria for a Global Pandemic, How to Prioritize Mobile Marketing Initiatives for Quick-service Restaurants, Restaurant operators: 'Not the right time for wage boost', 2020 Digital Signage Hardware Comparison Guide.

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