Trademark Law and Practice, Pages 228–236

Pizza Hut, Inc. v. Papa John's Intern., Inc.

United States Court of Appeals for the Fifth Circuit, 2000

Facts:

Defendant Papa John's acquired a trademark for its slogan "Better Ingredients. Better Pizza." The next year, plaintiff Pizza Hut ran a series of ads toting its pizza quality and challenging anyone to find a better pizza. In response, Papa John's ran its own series of ads featuring Frank Carney, the founder of Pizza Hut, who since became a franchisee for Papa John's. These ads were a great success, and Papa John's followed it up with ads boasting that it "won big time" in taste tests. It was preferred by ~58% of people.

After these ads, Papa John's ran yet another series of ads describing how each of its components was better than Pizza Hut's, namely that its sauce used fresh canned tomatoes instead of tomato paste, that its dough used filtered water instead of tap, and that its dough was allowed to proof instead of being frozen or newly-made.

Pizza Hut did not deny the allegations but said that they do not affect the taste of its pizza. It sued for false advertising over this.

Procedural History:

District court submitted the issue to the jury, which found that defendant's slogan, sauce claims, and dough claims were false or misleading and deceptive or likely to deceive consumers. The trial court then held that the slogan was consistent non-actionable puffery until the recent advertising about its ingredients. In response, it enjoined defendant from ever using a recognizable variation of the phrase and from identifying Frank Carney as a co-founder of Pizza Hut unless it states that he has not been affiliated with it since 1980. Finally, it enjoined defendant from claiming that a component of its pizza was superior to the corresponding component of plaintiff's unless supported by scientific evidence and disclaiming on-air where and when such tests took place.

Issue:

Did defendant's true but misleading advertising turn its slogan from puffery into false advertising?

Rule:

Puffery is a form of non-actionable statement that comes in two forms:

  1. An exaggerated, boasting statement no reasonable buyer would be justified in relying upon
  2. A general claim of superiority over comparable products that is so vague that it is understood as nothing more than an opinion.

Reasoning:

The assertion "Better Pizza" is the epitome of exaggerated, boasting advertising which no consumer would rely upon. Therefore it seems indisputable that it was, at least initially, non-actionable puffery. The same holds true for "Better Ingredients", as "better" is still just a matter of individual taste. Joining these phrases does not change this.

To determine if the slogan was tainted by the commercials, one must first evaluate whether the commercials were misleading. The jury's findings must be accepted unless the facts point overwhelmingly in the other direction. There is sufficient evidence to support the jury's conclusion about the sauce and dough ads being misleading, so the jury's findings must be accepted.

Having established that, it can be inferred that the slogan would be misleading in that context. If they are talking about their "better ingredients" specifically, it is no longer just puffery. However, plaintiff has not provided evidence that the misleading facts conveyed through the slogan were material to consumers and affected their purchasing decisions. Therefore the slogan has not been shown to violate the Lanham Act, and the district court should have granted defendant's motion for a judgment as a matter of law.

Holding:

No, defendant's misleading adverts have not been shown to have a material effect and are thus non-actionable. Vacated, reversed, and remanded.

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