Puffery or False Advertising? Referee Blows Whistle on Basketball Manufacturer’s Claims of Innovation
By: DEAN R. KARAU
October 2007
Baden Sports, Inc., sued its competitor, Japanese ball maker Kabushiki Kaisha Molten, and its U.S. subsidiary, for patent infringement and false advertising. Molten is the official basketball of the 2008 Olympic Games in Beijing and an official sponsor of USA Basketball.
Baden asserted that Molten infringed a technique it patented in the mid-1990s for producing basketballs and that Molten’s advertising claims, that its basketball design was “exclusive,” “innovative,” and “proprietary,” were intentionally false.
A false advertising claim requires the use of a false or misleading description of fact about goods or services in commercial advertising. The description must misrepresent the nature, qualities, or geographic origin of the goods. In contrast, puffery is a statement that is so vague or hyperbolic that a reasonable person would take it neither literally nor seriously as fact.
On August 16, 2007, a Seattle jury found that Molten infringed Baden’s patent, and the existence of Baden’s patent and Molten’s infringement made Molten’s advertising claims ring intentionally false in the eyes of the jury. The jury thus awarded Baden over $8,000,000 in damages on the false advertising claim:
On September 25, the district court judge entered a permanent injunction enjoining Molten from advertising to United States consumers that its “dual cushion” basketballs are “innovative.”