When A Pet Product's "#1 Brand" Claim Prompts The Question: What Makes A Brand, A Brand?

Frankfurt Kurnit Klein & Selz


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Last year, Zesty Paws ran an advertising campaign touting claims that it was the "#1 Brand of Pet Supplements in the USA," "USA's #1 Brand of Pet Supplements" and the "#1 selling Pet Supplement Brand in the USA."
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Last year, Zesty Paws ran an advertising campaign touting claims that it was the "#1 Brand of Pet Supplements in the USA," "USA's #1 Brand of Pet Supplements" and the "#1 selling Pet Supplement Brand in the USA." The claims were made in various locations, including on Zesty Paws' website, social media accounts, in a promotional video and on in-store displays. When competitor Nutramax got wind of these sales superiority claims, the company brought a challenge arguing, simply, that the claims were false.

During the proceeding, Nutramax and Zesty Paws stipulated that, at all times relevant to the preliminary injunction motion, (1) the combined sales of Nutramax's pet supplements exceeded that of Zesty Paws'; and (2) the combined sales of Zesty Paws' pet supplement products exceeded that of each individual pet supplement product sold by Nutramax (including Cosequin and Dasuquin, which support pet joint health). Nutramax filed a preliminary injunction motion seeking to enjoin Zesty Paws from using the "#1 brand" claims while the case was pending.

In determining whether Nutramax would be entitled to a preliminary injunction, the court had to decide whether Nutramax, as a whole, was even a "brand" at all. Zesty Paws argued that Nutramax as a whole was not a brand – that only Nutramax's individual product names, like Cosequin and Dasuquin, were brands – and that accordingly, Zesty Paws' #1 claims were true when comparing its pet supplement products overall with the sales of each pet supplement product sold by Nutramax. The parties did not dispute, however, that if Nutramax was in fact a brand, its total sales of pet supplement products "exceed Zesty Paws' total sales of pet supplement products at all relevant times."

So, then, what's a brand? Well, the court relied on definitions by The American Marketing Association, experts provided by Nutramax, and other company representatives, who generally said that a brand is any distinctive feature that identifies goods or services. The court determined that Nutramax generally, whose name differentiates its products from others and whose federally registered trademark is on every product sold, showed a likelihood of proving that it is in fact a brand. When Zesty Paws then argued that Nutramax is not a brand because it is isn't a primary driver in a consumer's purchasing decisions (a "driver brand"), the court said there was no evidence that consumers would understand the #1 claims to refer to a "driver brand."

With Nutramax establishing that it likely is in fact a brand, the court said Nutramax is also likely to show that the #1 claims are literally false – that Zesty Paws is not the #1 U.S. pet supplement brand, based on the stipulated fact that Nutramax's pet supplement sales are higher than Zesty Paws'.

The court determined that Nutramax demonstrated a likelihood of success on the merits of its federal false advertising claim, successfully showed irreparable harm and that the balance of hardships and public interest weigh in its favor, satisfying the requirements for a preliminary injunction. Accordingly, Nutramax's preliminary injunction motion was granted.

ZESTY PAWS LLC, Plaintiff, v. NUTRAMAX LABORATORIES, INC., et al., Defendants., 2024 WL 2853622 (S.D.N.Y., 2024)


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