The word "better," when used in this context is unquantifiable. After the jury returned its verdict, Papa John's filed a post-verdict motion under Federal Rule of Civil Procedure 50 for a judgment as a matter of law. Plaintiffs looking to recover monetary damages for false or misleading advertising that is not literally false must prove actual deception. Further, we liberally construe nine television commercials to be sauce ads and two television commercials to be dough ads. We have interpreted this section of the Lanham Act as providing "protection against a `myriad of deceptive commercial practices,' including false advertising or promotion." Thus, Pizza Hut failed to produce evidence of a Lanham Act violation, and the district court erred in denying Papa John's motion for judgment as a matter of law. Better Pizza." book." Better Pizza." This complaint, however, did not produce satisfactory results for Pizza Hut. See Castrol, Inc. v. Quaker State Corp., 977 F.2d 57, 62 (2d Cir. Former Pizza Hut associate, Bob Cressler, told the Wichita Business Journal in July that following Carney through the company's boom years of 1970-'75 was "like hanging onto a comet going skyward." In 1984, John Schnatter founded Papa John's Pizza in the back of his father's tavern. Id. [9]In its memorandum opinion addressing Papa John's post-verdict Rule 50 motion, the court stated: Although Papa John's started in May 1995 with a slogan which was essentially ambiguous and self-laudatory, consistent with the legal definition of non-actionable puffery, Papa John's deliberately and intentionally exploited its slogan as a centerpiece of its subsequent advertising campaign after May 1997 which falsely portrayed Papa Johns's tomato sauce and pizza dough as being superior to the sauce and dough components used in Pizza Hut's pizza products. 1999)(quoting Aetna Cas. are likely to cause injury or damage to Pizza Hut in terms of declining sales or loss of good will?" His first 30 years in business were marked by achievements followed by accomplishments; even after leaving Pizza Hut in 1980, his second career as a venture capital investor nearly doubled his net worth. Frank Carney was a 19-year-old student at Wichita State University when he and his brother Dan Carney, 26, borrowed $600 from their mother to start a pizza business in 1958 near the family’s Carney Market, the Eagle reported. 1995). in conjunction with these misleading ads gave quantifiable meaning to the slogan making a general statement of opinion misleading within the meaning of the Lanham Act. 1997)(stating that in order to constitute a statement of fact, a statement must make "a specific and measurable advertisement claim of product superiority"). 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. Thirty-eight years earlier, Mr. Carney had been a founder of Pizza Hut. Carney had recently recovered from COVID-19, but had Alzheimer's disease for more than a decade, the Wichita Eagle reported.He died at 4:30 a.m. at an assisted living facility in Wichita, his wife and brother told … Better Pizza. Before reaching the ultimate question of whether the slogan is actionable under the Lanham Act, we will first examine the sufficiency of the evidence supporting the jury's conclusion that the comparison ads were misleading. This campaign was the culmination of "Operation Lightning Bolt," a nine-month, $50 million project in which Pizza Hut declared "war" on poor quality pizza. ", Carney blamed his VC downfall on trying to manage too much at once, saying that when managing a few things, he does well, "but when I've got lots to keep track of a lot, I get in trouble.". 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. In May 1995, Papa John's adopted a new slogan: "Better Ingredients. Better Pizza." "Right now I'm having a ball, a lot of fun," said Carney. Plaintiffs attempting to prove actual deception have to produce evidence of actual consumer reaction to the challenged advertising or surveys showing that a substantial number of consumers were actually misled by the advertisements. Papa John's also ran television advertising which prominently featured Frank Carney, a co-founder of Pizza Hut who has owned Papa John's franchises since 1993. Better Pizza.' During May 1997, Papa John's sales increased 11.7 percent over May 1996 sales, while Pizza Hut's sales were down 8 percent. We invite you to share condolences for Frank Carney in our Guest Book. The parties consented to a jury trial before a United States magistrate judge. Essential to any claim under section 43(a) of the Lanham Act is a determination of whether the challenged statement is one of fact—actionable under [496] section 43(a)—or one of general opinion—not actionable under section 43(a). From the deck of a World War II aircraft carrier, Pizza Hut's president, David Novak, declared "war" on "skimpy, low quality pizza." 1996). [4] Pizza Hut has not sought to appeal the jury's verdict regarding its advertising. . 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. [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." See, e.g., PPX Enters., Inc. v. Audiofidelity Enters., Inc., 818 F.2d 266, 271 (2d Cir. 4 pizza chain Papa John’s takes another shot at Pizza Hut this week with a television commercial backed by $6 million in media spending. See Plaintiff's Exhs. In early May 1997, Papa John's launched its first national ad campaign. Bisecting the slogan "Better Ingredients. Pizza Hut, Inc. v. Papa John's International, Inc. Instead, proof of actual deception requires proof that "consumers were actually deceived by the defendant's ambiguous or true-but-misleading statements." 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." [7] McCarty on Trademarks goes on to state: "[V]ague advertising claims that one's product is `better' than that of competitors' can be dismissed as mere puffing that is not actionable as false advertising." ", Pizza Hut does not appear to contest the truthfulness of the underlying factual assertions made by Papa John's in the course of these ads. By 1989, however, his good luck was running out. American Council, 185 F.3d at 606; see also Balance Dynamics, 204 F.3d at 690 (emphasis added). The ad campaign was remarkably successful. 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. Id. Better Pizza." That is, what does the public perceive the message to be. Rutherford v. Harris County, Texas, 197 F.3d 173, 179 (5th Cir. The court concluded that the "Better Ingredients. Smithkline, 960 F.2d at 297. Thank you. in connection with a series of comparative ads found by the jury to be misleading—specifically, ads comparing Papa John's sauce and dough with the sauce and dough of its competitors—"tainted" the statement of opinion and made it misleading under section 43(a) of the Lanham Act. Tragedy struck, at … "He's a fine businessman, too, a great partner.". "I will say that in last three years, Pizza Hut's done a nice job in bringing the quality back," he said. 1999))(emphasis added). The district court, without objection, submitted the liability issue to the jury through special interrogatories. 2000); Resource Developers, 926 F.2d at 139. "It's very stressful when you find out that you're not as smart as thought as you were," said Carney, 63, from his office in Wichita, Kan., the city where Pizza Hut was founded. When used in the context of the sauce and dough ads, the slogan is misleading for the same reasons we have earlier discussed in connection with the sauce and dough ads.[11]. "; (2) Danato's uses the slogan "Best Pizza on the Block. ". Presidio, 784 F.2d at 679; see also Southland Sod Farms v. Stover Seed Co., 108 F.3d 1134, 1145 (9th Cir. 1996). Better Pizza." 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. 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. The failure to prove the existence of any element of the prima facie case is fatal to the plaintiff's claim. Mr. Carney was raised in a large, close family with six siblings. We will therefore consider whether the slogan standing alone constitutes a statement of fact under the Lanham Act. 1992). In 1996, Papa John's filed for a federal trademark registration for this slogan with the United States Patent & Trademark Office ("PTO"). Papa John (John Schnatter) TV Commercials Ads. Better Pizza.' When Hart called to tell him the founder of Pizza Hut wanted in, Schnatter thought he was joking. Thus, the success of a plaintiff's implied falsity claim usually turns on the persuasiveness of a consumer survey. At issue in this case were some 249 print ads and 29 television commercials. Interestingly, the person most difficult to convince that Carney was serious about franchising was John Schnatter, founder and CEO of Papa John's. 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. On January 26, we granted Papa John's motion to stay the district court's injunction pending appeal. 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. Southland Sod Farms v. Stover Seed Co., 108 F.3d 1134, 1145 (9th Cir. Papa John's Advertiser Profiles Facebook, Twitter, YouTube Products Papa John's Pepperoni, Papa John's App Tagline “Better Ingredients. Thus, having concluded that the record supports a finding that the sauce and dough ads are misleading statements of fact, we must now determine whether the district court was correct in concluding that the use of the slogan "Better Ingredients. Further, the injunction precluded Papa John's from using the "adjective `better' to modify the terms `ingredients' and/or `pizza.'" Further, Pizza Hut provides no precedent, and we are aware of none, that stands for the proposition that the subjective intent of the defendant's corporate executives to convey a particular message is evidence of the fact that consumers in fact relied on the message to make their purchases. [2] Specifically, the jury answered "Yes" to each of the following interrogatories: (1) Did you find that Papa John's "Better Ingredients. Thus, the district court erred in denying Papa John's motion for judgment as a matter of law.[15]. 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. modifies "Better Pizza." And when Carney's not working on his own stores, Schnatter said Carney has given him advice. [499] Moving next to consider separately the phrase "Better Ingredients.," the same conclusion holds true. Bald assertions of superiority or general statements of opinion cannot form the basis of Lanham Act liability. [14] Consequently, these survey results provide no basis for the jury's finding. . See also Resource Developers, 926 F.2d at 139; Blue Dane Simmental Corp. v. American Simmental Assoc., 178 F.3d 1035, 1042-43 (8th Cir. 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." 1986). A prima facie case of false advertising under section 43(a) requires the plaintiff to establish: See Taquino v. Teledyne Monarch Rubber, 893 F.2d 1488, 1500 (5th Cir. The ads were a response to Pizza Hut's "dare" to find a "better pizza." This survey evidence, however, fails to address Pizza Hut's claim of materiality with respect to the slogan. He was 82. 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. In making this determination, we will first consider the slogan "Better Ingredients. Better Pizza." The parties further agreed that the liability issues were to be decided by the jury, while the equitable injunction claim and damages award were within the province of the court. See Coca-Cola Co. v. Tropicana Prod., Inc., 690 F.2d 312, 317 (2d Cir. Following the taste test ads, Papa John's ran a series of ads comparing specific ingredients used in its pizzas with those used by its "competitors." Hard lessons in business changed the diet of Pizza Hut founder, Frank Carney, from humble pie back to pizza pie. On January 20, 2000, Papa John's filed a notice of appeal with our court. 1994)(stating that a manufacturer's slogan that its product was "the most advanced home gaming system in the universe" was non-actionable puffery); Nikkal Indus., Ltd. v. Salton, Inc., 735 F.Supp. See American Council, 185 F.3d at 616; Smithkline, 960 F.2d at 297 (stating that when a "plaintiff's theory of recovery is premised upon a claim of implied falsehood, a plaintiff must demonstrate, by extrinsic evidence, that the challenged commercials tend to mislead or confuse"); Avila, 84 F.3d at 227. The tough part, he said, was telling his wife that mortgaging their home for the funds to get started was their only option. His achievements weren't limited to board rooms, either, as he earned a respectable reputation as sports car racer. 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. Carney had recently recovered … Section 43(a) of the Lanham Act, codified at 15 U.S.C. We assume that "Better Ingredients." "If you think you can't make a mistake, you've just made the biggest. The Carney brothers managed to find someone to teach them how to make pizza only two weeks before their first store opened. Better Pizza.," we fail to see how the mere joining of these two statements of opinion could create an actionable statement of fact. 1990); 4 J. Thomas McCarthy, McCarthy on Trademarks and Unfair Competition, § 27:24 (4th ed. When a statement is "obviously a statement of opinion," it cannot "reasonably be seen as stating or implying provable facts." Frank Carney, who co-founded Pizza Hut with his brother in Wichita, Kansas died Wednesday from pneumonia, his wife confirmed. Frank Carney was born on April 26, 1938 in Wichita, Kansas. See American Council, 185 F.3d at 614; Blue Dane, 178 F.3d at 1042-43; Sandoz Pharm. [14] Pizza Hut has not sought review on appeal of the district court's ruling that the results of the box survey were inadmissible. This simple statement, "Better Pizza.," epitomizes the exaggerated advertising, blustering, and boasting by a manufacturer upon which no consumer would reasonably rely. 1996). 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. [501] Instead, it is due to a difference in the wheat used to make the dough. 1999)(citing Hidden Oaks Ltd. v. City of Austin, 138 F.3d 1036, 1042 (5th Cir. In its appellate brief and during the course of oral argument, Pizza Hut directs our attention to three items of evidence in the record that it asserts establishes materiality to consumers. 1-A-1 and 1-A-2. It is inappropriate to bar Papa John's … Better Pizza." United States Court of Appeals, Fifth Circuit. 1990). At the center of this appeal is Papa John's four word slogan "Better Ingredients. ", On November 17, 1999, the jury returned its responses to the special issues finding that Papa John's slogan, and its "sauce claims" and "dough claims" were false or misleading and deceptive or likely to deceive consumers. 1997)(stating that the "[p]laintiff must make some showing that the defendant's misrepresentation was `material' in the sense that it would have some effect on consumers' purchasing decision"). In short, Pizza Hut has failed to offer probative evidence on whether the misleading facts conveyed by Papa John's through its slogan were material to consumers: that is to say, there is no evidence demonstrating that the slogan had the tendency to deceive consumers so as to affect [504] their purchasing decisions. Frank Carney had one of the largest Papa John's franchises and kept working until Alzheimer's struck. Frank Carney was a businessman who co-founded Pizza Hut along with his brother. 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." Consequently, out of a total of 278 print and television ads, the slogan appeared in only 31 ads that could be liberally construed to be misleading sauce or dough ads. Dan also served on Pizza Hut's board of directors for many years before becoming a successful venture capitalist, which he continues doing today. 1996)(quoting Resource Developers v. Statue of Liberty-Ellis Island Found., 926 F.2d 134, 139 (2d Cir. Consequently, a reasonable consumer would understand the slogan, when considered in the context of the comparison ads, as conveying the following message: Papa John's uses "better ingredients," which produces a "better pizza" because Papa John's uses "fresh-pack" tomatoes, fresh dough, and filtered water. 1999)(stating that the phrase "The Best Beer in America" was "trade puffery" and that such a general claim of superiority "should be freely available to all competitors in any given field to refer to their products or services"); Atari Corp. v. 3D0 Co., 1994 WL 723601, *2 (N.D.Cal. Additionally, the court enjoined Papa John's from identifying Frank Carney as a co-founder of Pizza Hut, "unless such advertising includes a voice-over, printed statement or a superimposed message which states that Frank Carney has not been affiliated with Pizza Hut since 1980," and enjoined the dissemination of any advertising that was produced or disseminated prior to the date of this judgment and that explicitly or implicitly states or suggested that "Papa John's component is superior to the same component of Pizza Hut's pizzas." Copyright © 2021 Networld Media Group, LLC. Our review of the record convinces us that there is simply no evidence to support the district court's conclusion that the slogan was irreparably tainted as a result of its use in the misleading comparison sauce and dough ads. Frank Carney, who with his brother started the Pizza Hut empire in Wichita, died Wednesday from pneumonia. 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. Profitez des pizzas Papa John's en famille ou entre amis et commandez en ligne, en livraison ou à emporter. He still lives in Wichita with his wife Zenda. 1 point gagné pour 5 € dépensés. The type of evidence needed to prove materiality also varies depending on what type of recovery the plaintiff seeks. Collection Serv. 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. ", Still, Carney said his old company is making progress to set things aright. See, e.g., American Council, 185 F.3d at 618 ("Although plaintiff need not present consumer surveys or testimony demonstrating actual deception, it must present evidence of some sort demonstrating that consumers were misled. The appellant, Papa John's International Inc. ("Papa John's"), argues that the slogan "cannot and does not violate the Lanham Act" because it is "not a misrepresentation of fact." See Ensley v. Cody Resources, Inc., 171 F.3d 315, 319 (5th Cir. This is the old version of the H2O platform and is now read-only. 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. During … In essence, Pizza Hut argues, that by using the slogan "Better Ingredients. Better Pizza." Indeed, it is difficult to think of any product, or any component of any product, to which the term "better," without more, is quantifiable. Better Pizza." Additionally, while the slogan, when appearing in the context of some of the post-May 1997 comparative advertising—specifically, the sauce and dough campaigns—was given objectifiable meaning and thus became misleading and actionable, Pizza Hut has failed to adduce sufficient evidence establishing that the misleading facts conveyed by the slogan were material to the consumers to which it was directed. See Balance Dynamics Corp. v. Schmitt Ind., 204 F.3d 683, 690 (6th Cir. He's content not to expand beyond those five, but he believes he and his partners could grow those markets by 50 more stores overall. Co., v. Pendleton Detectives of Miss., Inc., 182 F.3d 376, 377-78 (5th Cir. REVERSED, VACATED, and REMANDED with instructions. Carney's work overseeing one of the largest franchisee groups in Papa John's system, said Hart, makes for a schedule that would exhaust men half Carney's age. The law governing false advertising claims under section 43(a) of the Lanham Act is well settled. . Better Pizza." 1992); Avila v. Rubin, 84 F.3d 222, 227 (7th Cir. U.S. Healthcare, Inc. v. Blue Cross of Greater Philadelphia, 898 F.2d 914 (3d Cir. Better Pizza.' The U.S. Supreme … Thus, there is no legally sufficient basis to support the jury's finding that the slogan standing alone is a "false or misleading" statement of fact. At the close of Pizza Hut's case, and at the close of all evidence, Papa John's moved for a judgment as a matter of law. 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. With respect to materiality, when the statements of fact at issue are shown to be literally false, the plaintiff need not introduce evidence on the issue of the impact the statements had on consumers. Better Pizza." 1982) (noting that when seeking a preliminary injunction barring an advertisement that is implicitly false, "its tendency to violate the [498] Lanham Act by misleading, confusing or deceiving should be tested by public reaction"). 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. 1992), the Second Circuit discussed this requirement in some detail: Where, as here, a plaintiff's theory of recovery is premised upon a claim of implied falsehood, a plaintiff must demonstrate, by extrinsic evidence, that the challenged commercials tend to mislead or confuse consumers. Frank Carney, right, in 1996, after he began working for the Papa John’s pizza chain. "The truth is that Frank has forgotten more about pizza than I'll ever know," said Schnatter, adding that Carney worked closely with PJ's R&D to develop its thin-crust pizza, rolled-out in 2000. According to the report, Freeh found Schnatter's comments were "neither intended nor can reasonably be … is expanded and given additional meaning when it is used as the tag line in the misleading sauce and dough ads. See American Council, 185 F.3d at 614; Johnson & Johnson, Inc. v. GAC Int'l, Inc., 862 F.2d 975, 977 (2d Cir. See Scottish Heritable Trust v. Peat Marwick Main & Co., 81 F.3d 606, 610 (5th Cir. Finally, the court enjoined Papa John's from "explicitly or implicitly claim[ing] that a component of Papa John's pizza is superior to the same component of Pizza Hut's unless the superiority claim is supported by either (1) scientifically demonstrated attributes of superiority or (2) taste test surveys." Age: 63 Residence: Wichita, Kan.Papa John's stores franchised: 133Personal highlight: placing fourth overall in the 1977 24 Hours of Daytona sports car raceWife: ZendaChildren: 8Grandchildren: 10Activities: runs 16-24 miles a week, lifts weights, plays golf. "With PepsiCo, the drive for growth at almost all cost caused them to denigrate the product. in combination with the ads comparing Papa John's sauce and dough with the sauce and dough of its competitions, Papa John's gave quantifiable meaning to the word "Better" rendering it actionable under section 43(a) of the Lanham Act. But it was my fault, and I caused her eat it.". In sum, we hold that the slogan "Better Ingredients. "He's taught me ... to trust my instincts, and never to let the tail of bureaucracy wag the dog of good solid operations and store-level profit.". Frank Carney, who co-founded Pizza Hut at age 19 in partnership with his older brother, only to use that distinction as a marketing cudgel when he became a Papa John’s franchisee years later, has died at age 82.. and "The Best Tasting Pizza.". In 1994, Carney got a call from Martin Hart, a former Pizza Hut board member who had become Papa John's franchisee in Houston. "But I've learned that the tough times made me a better manager and person. Therefore, the judgment of the district court denying Papa John's motion for judgment as a matter of law is REVERSED; the final judgment of the district court is VACATED; and the case is REMANDED for entry of judgment for Papa John's. is one of opinion not actionable under the Lanham Act. "If it had been her fault, then I would have been OK with eating humble pie together. This means you can view content but cannot create content. standing alone is not an objectifiable statement of fact upon which consumers would be justified in relying. The ad campaign was remarkably successful. In a pair of TV ads featuring Pizza Hut's co-founder Frank Carney, Carney touted the superiority of Papa John's pizza over Pizza Hut's pizza. As the court in Federal Express Corporation v. United States Postal Service,40 F.Supp.2d 943 (W.D.Tenn. American Council of Certified Podiatric Physicians and Surgeons v. American Bd. Rather, as we have reiterated in the past, "the question in such cases is—what does the person to whom the advertisement is addressed find to be the message?" "When you're in that position, you have to make some lifestyle changes," said Carney.

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