Case 5:15-cv-00946-JFL Document 181 Filed 05/10/16 Page 1 of 24
`
`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF PENNSYLVANIA
`__________________________________________
`
`
`
`
`
`
`
`
`PARKS, LLC,
`
`
`
`
`:
`
`
`
`
`
`
`
`:
`Plaintiff,
`
`
`:
`
`
`
`
`:
`v.
`
`
`
`
`
`
`:
`
`
`
`TYSON FOODS, INC.;
`
`
`
`:
`HILLSHIRE BRANDS COMPANY,
`
`:
`
`
`
`
`
`
`
`:
`
`
`
`Defendants.
`
`
`:
`__________________________________________
`
`
`
`
`No. 5:15-cv-00946
`
`MEMORANDUM OPINION
`Defendants’ Motion for Summary Judgment, ECF No. 124 – Granted
`
`
`
`
`Joseph F. Leeson, Jr.
`United States District Judge
`
`I.
`
`Introduction
`
`May 10, 2016
`
`
`
`
`
`This case involves a trademark and false advertising dispute.
`
`The Plaintiff, Parks, LLC, claims to be the owner of the trademark “Parks” that is used to
`
`sell sausages and other food products. Defendants Tyson Foods, Inc. and Hillshire Brands
`
`Company are owners of the “Ball Park” trademark that is used to sell a popular brand of
`
`frankfurters.
`
`
`
`In 2014, Defendants launched a new line of “super-premium” frankfurters under the
`
`name “Park’s Finest.” Parks claims that by doing so, Defendants have infringed upon its “Parks”
`
`trademark and engaged in false advertising and other unlawful conduct.
`
`
`
`In February 2015, Parks filed a complaint charging Defendants with engaging in false
`
`advertising, trademark infringement, and trademark dilution in violation of the Lanham Act, 15
`
`U.S.C. § 1125, as well as violating Pennsylvania law prohibiting unfair trade practices,
`
`trademark dilution, and unfair competition. Parks moved for a preliminary injunction on the
`
`
`
`1
`
`

`

`Case 5:15-cv-00946-JFL Document 181 Filed 05/10/16 Page 2 of 24
`
`basis of its false advertising claim, seeking to have Defendants enjoined from using the name
`
`“Park’s Finest” on any of Defendants’ products. After a hearing, the Court denied the motion
`
`because Parks failed to demonstrate that it was likely to succeed on its false advertising claim.
`
`See Parks, LLC v. Tyson Foods, No. 5:15-cv-00946, 2015 WL 4545408 (E.D. Pa. July 28,
`
`2015). The parties then commenced discovery, and the Court was called upon to resolve a
`
`number of disputes, including a dispute over Defendants’ written discovery requests, see Parks,
`
`LLC v. Tyson Foods, 2015 WL 5042918 (E.D. Pa. Aug. 26, 2015), Parks’s written discovery
`
`requests, see Parks, LLC v. Tyson Foods, 2015 WL 9316060 (E.D. Pa. Dec. 23, 2015), and the
`
`scope of a deposition, see id.
`
`Discovery has concluded, and Defendants have moved for summary judgment. Parks has
`
`conceded that judgment is warranted in Defendants’ favor on its claims of trademark dilution and
`
`its claim under the Pennsylvania Unfair Trade Practices and Consumer Protection Law. See Pl.’s
`
`Mem. Opp’n 1, ECF No. 138. That leaves Parks’s claims of false advertising and trademark
`
`infringement in violation of the Lanham Act and unfair competition under Pennsylvania law. The
`
`Court has determined that no reasonable factfinder1 could find in Parks’s favor from the
`
`evidence the parties have presented. Therefore, Defendants’ Motion for Summary Judgment is
`
`granted.
`
`II.
`
`Legal standard – Motion for summary judgment
`
`
`
`Summary judgment is appropriate if the moving party “shows that there is no genuine
`
`dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
`
`Civ. P. 56(a). A fact is material if the fact “might affect the outcome of the suit under the
`
`governing law,” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986), and a dispute is
`
`genuine if “the evidence is such that a reasonable jury could return a verdict for the nonmoving
`
`1
`The parties disagree over whether Parks would be entitled to a jury trial on these claims.
`2
`
`
`
`

`

`Case 5:15-cv-00946-JFL Document 181 Filed 05/10/16 Page 3 of 24
`
`party,” id. When the evidence favoring the nonmoving party is “merely colorable” or “not
`
`significantly probative, summary judgment may be granted.” Id. at 249-50 (citations omitted).
`
`The parties must support their respective contentions—that a fact cannot be or is genuinely
`
`disputed—by “citing to particular parts of materials in the record” or by “showing that the
`
`materials cited do not establish the absence or presence of a genuine dispute.” Fed. R. Civ. P.
`
`56(c)(1). “The court need consider only the cited materials, but it may consider other materials in
`
`the record.” Fed. R. Civ. P. 56(c)(3).
`
`III.
`
`Judgment is warranted in Defendants’ favor on Parks’ claim of false advertising.
`
`A.
`
`
`
`
`Parks’s allegations do not relate to the “nature, characteristics, qualities, or
`geographic origin” of Defendants’ Park’s Finest product.
`
`Parks’s false advertising claim was the basis for its request for preliminary injunctive
`
`relief. In the course of explaining why Parks was not likely to succeed on the merits of this
`
`claim, the Court laid out the scope of the Lanham Act’s prohibition on false advertising:
`
`[15 U.S.C. § 1125(a)(1)(B)] prohibits using “in commerce any word, term, name,
`symbol, or device, or any combination thereof, or any false designation of origin,
`false or misleading description of fact, or false or misleading representation of
`fact” either “on or in connection with any goods or services, or any container for
`goods,” which “in commercial advertising or promotion, misrepresents the nature,
`characteristics, qualities, or geographic origin of his or her or another person’s
`goods, services, or commercial activities.” 15 U.S.C. § 1125(a)(1)(B); see Groupe
`SEB USA, Inc. v. Euro-Pro Operating LLC, 774 F.3d 192, 198 (3d Cir. 2014).
`
`
`Parks, 2015 WL 4545408, at *7. At the time, the Court suggested that Parks may not have a
`
`viable claim for false advertising because the allegedly false representation that Defendants are
`
`making—calling their product “Park’s Finest”—does not relate to the “nature, characteristics,
`
`qualities, or geographic origin” of the product. See id. at *7 n.15. The Court now holds that for
`
`this reason, Parks’s allegations do not state a claim for a violation of § 1125(a)(1)(B).
`
`
`
`3
`
`

`

`Case 5:15-cv-00946-JFL Document 181 Filed 05/10/16 Page 4 of 24
`
`
`
`Section 1125(a) prohibits “two major and distinct types” of conduct. 5 J. Thomas
`
`McCarthy, McCarthy on Trademarks and Unfair Competition § 27:9, Westlaw (database updated
`
`Mar. 2016). Section 1125(a)(1)(A) prohibits misrepresentations that are “likely to cause
`
`confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of [a]
`
`person with another person, or as to the origin, sponsorship, or approval of his or her goods,
`
`services, or commercial activities by another person.” 15 U.S.C. § 1125(a)(1)(A). Section
`
`1125(a)(1)(B), by contrast, prohibits advertising and promotional activities that “misrepresent[]
`
`the nature, characteristics, qualities, or geographic origin of [a person’s] goods, services, or
`
`commercial activities.” Id. § 1125(a)(1)(B). “Section 1125(a) thus creates two distinct bases of
`
`liability: false association, § 1125(a)(1)(A), and false advertising, § 1125(a)(1)(B).” Lexmark
`
`Int’l, Inc. v. Static Control Components, Inc., 134 S. Ct. 1377, 1384 (2014) (citing Waits v.
`
`Frito–Lay, Inc., 978 F.2d 1093, 1108 (9th Cir. 1992)). The two provisions have “separate . . .
`
`substantive rules and applicability,” see McCarthy, supra, § 27:9, which means that to properly
`
`analyze a claim under this section of the Lanham Act, the claim must be correctly classified.
`
`Section 1125(a)(1)(A) acts as a “vehicle for assertion of a claim of infringement of an
`
`unregistered mark,” McCarthy, supra, § 27:14, and claims under this provision are generally
`
`analyzed under the “law governing infringement of registered trademarks.” Island Insteel Sys.,
`
`Inc. v. Waters, 296 F.3d 200, 206 n.1 (3d Cir. 2002). False advertising claims under
`
`§ 1125(a)(1)(B) are analyzed under a different framework that is designed to assess whether an
`
`advertisement about a product has a tendency to deceive prospective purchasers about the nature
`
`or characteristics of the product. See Groupe SEB, 774 F.3d at 198 (quoting Pernod Ricard USA,
`
`LLC v. Bacardi U.S.A., Inc., 653 F.3d 241, 248 (3d Cir. 2011)) (setting forth the test that applies
`
`to a claim of false advertising).
`
`
`
`4
`
`

`

`Case 5:15-cv-00946-JFL Document 181 Filed 05/10/16 Page 5 of 24
`
`According to Parks, Defendants’ use of the name “Park’s Finest” constitutes false
`
`advertising because “Park’s Finest unambiguously refer[s] to Parks,” see Pl.’s Mem. Opp’n 4,
`
`which “misrepresent[s] Tyson’s products as products of Parks,” see Am. Compl. ¶ 51, ECF
`
`No. 4. This is a claim of false association, not false advertising. Parks is not contending that
`
`Defendants have misrepresented the nature, characteristics, or qualities of their new line of
`
`frankfurters; its claim is that the name “Park’s Finest” is “likely to cause confusion, or to cause
`
`mistake, or to deceive as to the affiliation, connection, . . . association . . . [or] origin” of the
`
`product. “Absent a false statement about geographic origin, a misrepresentation is actionable
`
`under § 1125(a)(1)(B) only if it misrepresents the ‘characteristics of the good itself’—such as its
`
`properties or capabilities.” Kehoe Component Sales Inc. v. Best Lighting Prods., Inc., 796 F.3d
`
`576, 590 (6th Cir. 2015) (quoting Sybersound Records, Inc. v. UAV Corp., 517 F.3d 1137, 1144
`
`(9th Cir. 2008)); see Forschner Grp., Inc. v. Arrow Trading Co. Inc., 30 F.3d 348, 357 (2d Cir.
`
`1994) (rejecting a claim that use of the phrase “Swiss Army knife” to describe “an inexpensive
`
`and shoddy multifunction pocketknife manufactured in China” constituted false advertising
`
`because the representation did not relate to either the geographic origin or the quality of the
`
`product). As the Court observed in connection with Parks’s request for preliminary injunctive
`
`relief, Defendants’ use of the name “Park’s Finest” could deceive consumers only if it led them
`
`to believe that the product was associated with Parks. That could happen only if the word
`
`“Parks” “identif[ies] and distinguish[es]” Parks’s products “from those manufactured and sold
`
`by others”—in other words, only if the word “Parks” constitutes a protectable trademark. See 15
`
`U.S.C. § 1127 (defining “trademark”). Because Parks’s claim rises or falls based on whether it is
`
`able to establish that “Parks” functions as a trademark in the minds of consumers, the proper
`
`analytical framework in which to assess this claim is the law of trademarks.
`
`
`
`5
`
`

`

`Case 5:15-cv-00946-JFL Document 181 Filed 05/10/16 Page 6 of 24
`
`B.
`
`
`
`A reasonable trier of fact could not conclude that Defendants’ use of the name
`“Park’s Finest” constitutes false advertising.
`
`Even if the false advertising framework applied, a reasonable trier of fact could not find
`
`in Parks’s favor. To establish liability, a plaintiff must show
`
`1) that the defendant has made false or misleading statements as to his own
`product [or another’s]; 2) that there is actual deception or at least a tendency to
`deceive a substantial portion of the intended audience; 3) that the deception is
`material in that it is likely to influence purchasing decisions; 4) that the advertised
`goods traveled in interstate commerce; and 5) that there is a likelihood of injury to
`the plaintiff in terms of declining sales, loss of good will, etc.
`
`Groupe SEB, 774 F.3d at 198 (alteration in original) (quoting Pernod Ricard USA, LLC v.
`
`Bacardi U.S.A., Inc., 653 F.3d 241, 248 (3d Cir. 2011)). A false statement can take one of two
`
`forms: either the statement is literally false, which means that it unambiguously conveys a false
`
`message to the intended audience, or the statement is “literally true or ambiguous, but has the
`
`tendency to deceive consumers.” Id. (quoting Novartis Consumer Health, Inc. v. Johnson &
`
`Johnson-Merck Consumer Pharm. Co., 290 F.3d 578, 586 (3d Cir. 2002)).
`
`1.
`
`
`
`Defendants have not made a literally false statement.
`
`Determining whether a statement is literally false is essentially a matter of construction,
`
`which calls upon the court to examine whether the statement “on its face, conflicts with reality.”
`
`See Schering Corp. v. Pfizer Inc., 189 F.3d 218, 229 (2d Cir. 1999) (Sotomayor, J.); Novartis,
`
`290 F.3d at 587. “[A] court may determine, based on its own review of the advertisement,
`
`whether a literally true or literally false message is conveyed, using its ‘own common sense and
`
`logic in interpreting the message of the advertisement.’” McCarthy, supra, § 27:56 (quoting
`
`Hertz Corp. v. Avis, Inc., 867 F. Supp. 208, 212 (S.D.N.Y. 1994)). The important limiting
`
`principle is that “[o]nly an unambiguous message can be literally false,” Novartis, 290 F.3d at
`
`587, which reserves for this category only the “bald-faced, egregious, undeniable, over the top”
`
`
`
`6
`
`

`

`Case 5:15-cv-00946-JFL Document 181 Filed 05/10/16 Page 7 of 24
`
`falsities, Schering-Plough Healthcare Products, Inc. v. Schwarz Pharma, Inc., 586 F.3d 500, 513
`
`(7th Cir. 2009).
`
`
`
`Defendants’ use of the name “Park’s Finest” is not one of those statements. As the Court
`
`explained in denying Parks’s request for preliminary injunctive relief, the “Park’s Finest” mark
`
`that appears on Defendants’ packaging does not unambiguously refer to Parks, and no reasonable
`
`factfinder could conclude otherwise.
`
`The new frankfurters appear in a package that features the name “Park’s Finest”
`prominently displayed in a capitalized, sans-serif typeface, with the word “Park’s”
`located on a separate line directly above the word “Finest.” The two words are set
`in a justified alignment, and together they form a large, rectangular-shaped word
`mark. Superimposed on the center of, and partially obscuring, the “Park’s Finest”
`text is Defendants’ “Ball Park” trademark—the mark that appears on Defendants’
`Ball Park-branded frankfurters. The new Park’s Finest name and the Ball Park
`brand are also used together in the radio and television advertisements Defendants
`created, which describe the product as “Park’s Finest from Ball Park.”
`
`
`Parks, 2015 WL 4545408, at *2 (citations omitted). Even a consumer who is familiar with the
`
`“Parks” brand would not inevitably come away with the impression that the “Park’s” in “Park’s
`
`Finest” was a reference to Parks rather than to Defendants’ “Ball Park” brand, given that the
`
`“Ball Park” name is directly integrated into both the Park’s Finest wordmark and the script of the
`
`advertisements. Because the Park’s Finest name is, at the least, susceptible to “several plausible
`
`meanings,” see Groupe SEB (quoting Clorox Co. P.R. v. Proctor & Gamble Commercial Co.,
`
`228 F.3d 24, 35 (1st Cir. 2000)), the Court found that Defendants’ advertisements were not
`
`literally false. Parks, 2015 WL 4545408, at *10.
`
`
`
`Parks contends that this conclusion needs to be revisited because Defendants failed to
`
`produce any evidence to support the testimony given by one of its officers at the preliminary
`
`injunction hearing that the name “Park’s Finest” was intended to be seen as shorthand for their
`
`“Ball Park” brand, or any customer surveys to show that consumers understand that connection.
`
`
`
`7
`
`

`

`Case 5:15-cv-00946-JFL Document 181 Filed 05/10/16 Page 8 of 24
`
`In Parks’s view, the Court’s conclusion that Defendants had not made a literally false statement
`
`depended upon that testimony, and Defendants’ failure to produce other evidence to substantiate
`
`that testimony calls the Court’s conclusion into question.
`
`This argument misapprehends the nature of the inquiry into whether a statement is
`
`literally false. A statement is literally false only if the statement, on its face, unambiguously
`
`conveys a false message. The Court’s conclusion that the use of the name “Park’s Finest” was
`
`not literally false was based simply on the Court’s examination of that message in the context it
`
`was presented. See Parks, 2015 WL 4545408, at *9 (“On the product’s packaging, Hillshire
`
`integrated its Ball Park trademark into the Park’s Finest word mark, and in the television
`
`commercials, Hillshire chose to verbally juxtapose the two names by using the phrase, ‘Park’s
`
`Finest from Ball Park.’ . . . In that context, the name ‘Park’s Finest’ and the phrase ‘Park’s Finest
`
`from Ball Park’ plausibly convey to consumers that the Park’s Finest frankfurters ‘are the
`
`highest-end product line under the Ball Park brand.’”). “A determination of literal falsity rests on
`
`an analysis of the message in context,” Groupe SEB, 228 F.3d at 198 (quoting Johnson &
`
`Johnson-Merck Consumer Pharm. Co. v. Rhone-Poulenc Rorer Pharm., Inc., 19 F.3d 125, 129
`
`(3d Cir. 1994)), not on the message the speaker intended to convey or on survey evidence of
`
`what consumers may believe the message to mean.2 That “Park’s Finest” can be understood as a
`
`
`2
`The same is true with regard to Parks’s contention that evidence produced during discovery revealed that
`the Park’s Finest product was born out of Defendants’ “intention to produce a product which would be seen as a
`sausage but would be called a hot dog.” Pl.’s Mem. Opp’n 7. This contention relates to Parks’s argument that
`consumers would not understand “Park’s Finest” to be a reference to the Ball Park brand because the “Park’s Finest”
`product is actually a sausage, not a frankfurter, and the Ball Park brand is associated with frankfurters, not sausages.
`The Court examined this contention at length in connection with Parks’s request for preliminary injunctive relief,
`and pointed out that “[e]ven if a consumer mistakenly believed that the Park’s Finest product was a sausage”—or
`even if the product was actually a sausage—“a consumer could still understand that the ‘Park’s Finest’ name, in the
`context Hillshire has created, was intended to be a reference to Defendants’ Ball Park brand.” See Parks, 2015 WL
`4545408, at *9 & n.8. A consumer who encounters the Park’s Finest product would not be privy to how Defendants
`intended for the product to be seen; the consumer would simply be presented with a package that contains the
`“Park’s Finest” name, the “Ball Park” logo superimposed on it, and the statement that the package contains
`“‘Uncured Beef Frankfurters’ in a font size that is significantly larger than much of the other text that appears on the
`8
`
`
`
`

`

`Case 5:15-cv-00946-JFL Document 181 Filed 05/10/16 Page 9 of 24
`
`reference to the “Ball Park” brand is a matter of common sense and linguistics, see Parks, 2015
`
`WL 4545408, at *10 n.9 (observing that the word “park” is a commonly understood abbreviation
`
`for a ballpark), not whether there is a sufficient quantum of evidence documenting the fact that
`
`Defendants intended for consumers to understand that reference.3
`
`2.
`
`
`
`
`Defendants’ use of “Park’s Finest” is not likely to deceive a substantial portion of
`the intended audience.
`
`If a statement is not literally false, it may nonetheless constitute false advertising if the
`
`statement can be shown to have a tendency to deceive a substantial portion of the intended
`
`audience. See Pernod Ricard, 653 F.3d at 248; Novartis, 290 F.3d at 591, 594. Whether a
`
`statement has a tendency to deceive “depends upon the message that is conveyed to consumers,”
`
`which means “the success of the claim usually turns on the persuasiveness of a consumer
`
`survey.” Rhone-Poulenc Rorer, 19 F.3d at 129-30. At the preliminary injunction hearing,
`
`Defendants were the only ones to present any survey evidence. Their survey found that only one
`
`person from a field of two hundred mistakenly believed that Defendants’ Park’s Finest product
`
`originated with Parks—a rate of confusion of less than one percent. See Parks, 2015 WL
`
`4545408, at *13-15.
`
`
`
`In their opposition to the present motion for summary judgment, Parks has produced a
`
`survey, which it relies upon to support both its false advertising claim and its trademark
`
`infringement claim. The trouble with asking this survey to pull double-duty is that, as Defendants
`
`
`package.” Id. at *15 n.24. No reasonable factfinder could conclude that the “Park’s Finest” name, in that context,
`could not be understood as a reference to the “Ball Park” brand.
`3
`Regardless, Defendants have produced documentary evidence that the “Park’s Finest” name was chosen
`precisely because it functioned as a reference to their Ball Park brand. Defendants produced a report from a
`marketing firm that conducted a series of focus groups early in the development of the Park’s Finest product.
`Among the names that the firm tested, “Park’s Finest” was one of two names that “merit[ed] consideration” because
`“[t]he word ‘Park’ evoked feelings of the baseball park experience that is strongly associated with hot dogs,” and the
`name “linked strongly to the Ball Park brand name.” Smith Decl. Ex. 1, at 9, ECF No. 127-1. Another study
`conducted approximately two months later also found “Park’s Finest” to be one of the top two performing names
`because it “show[ed] unique strength on Fit with [the] Ball Park brand.” Smith Decl. Ex. 2, at 6, ECF No. 127-2.
`9
`
`
`
`

`

`Case 5:15-cv-00946-JFL Document 181 Filed 05/10/16 Page 10 of 24
`
`point out, the survey was designed to assess a claim of trademark infringement, not false
`
`advertising. The Court of Appeals for the Third Circuit has suggested that, in the false
`
`advertising context, “a well-designed consumer survey first asks ‘communication’ questions to
`
`see what messages the viewer got and to ‘filter’ or separate those viewers who received certain
`
`messages from those who did not,” and then “asks those who received a particular message . . .
`
`‘comprehension’ questions to determine what the viewers thought the message meant.” See
`
`Rhone-Poulenc Rorer, 19 F.3d at 134. This survey, however, presented each participant with an
`
`array of five product images, including (in the test group) pictures of a Parks breakfast sausage
`
`package, a Park’s Finest package, and three other unrelated sausage and hot dog products, before
`
`asking whether the participant believed that two or more of those products were “from the same
`
`company or are affiliated or connected.” See Lang Decl. Resp. Swann Critique Ex. 2, at 43-47,
`
`ECF No. 138 (containing a copy of the survey form); id. at 49-53 (reproducing the product array
`
`that was presented to the survey participants). If the participant answered in the affirmative, the
`
`survey asked the participant to identify those products and explain why he or she believed that
`
`they were affiliated or connected. Id. at 43-47.
`
`
`
`What the survey did not do is ask the participants what message they received after
`
`examining the Park’s Finest product or assess what they thought the message meant. A review of
`
`the responses provided by those survey participants who believed that the Parks product depicted
`
`in the image was affiliated with or connected to the Park’s Finest product depicted in the image
`
`reveals that nearly seventy percent of them believed that they were related because they both had
`
`the word “Park” in their name, while another twenty percent pointed to the fact that they both
`
`had a same or similar name. Id. at 27. That sheds no light on what message a consumer receives
`
`when they encounter the Park’s Finest packaging or, more importantly, whether the consumer
`
`
`
`10
`
`

`

`Case 5:15-cv-00946-JFL Document 181 Filed 05/10/16 Page 11 of 24
`
`would receive the false message that the product originated with, or was affiliated with, Parks. A
`
`survey participant who did not receive any message of origin from the image of the Park’s Finest
`
`product may nonetheless have responded that the product was related to the image of the Parks
`
`product simply because the participant noticed that that the word “Park” appeared in both
`
`images. A properly designed false advertising survey would have “filtered” out any participant
`
`who did not receive a message from the Park’s Finest packaging that had to do with the
`
`product’s origin. See Novartis, 290 F.3d at 591 (quoting Johnson & Johnson-Merck Consumer
`
`Pharm. Co. v. Smithkline Beecham Corp., 960 F.2d 294, 300 (2d Cir. 1992)). Inversely, a survey
`
`participant who correctly understood from the packaging that the Park’s Finest product was
`
`affiliated with Defendants’ Ball Park brand may nonetheless have answered that the Parks
`
`product was connected to the Park’s Finest product, again, simply because the participant noted
`
`that the two products had the word “Park” in common. But without assessing what message that
`
`participant received from the Park’s Finest packaging, whether the packaging actually
`
`communicated a false message cannot be ascertained. See id. (recognizing that the evidentiary
`
`value of a false advertising survey depends upon whether the “questions are directed to the real
`
`issues”). Instead of assessing the message that the Park’s Finest packaging communicates, this
`
`survey assessed whether consumers who encounter the two products simultaneously would be
`
`confused about their relationship to each other. While that may be an appropriate method to
`
`assess the likelihood of confusion in connection with a trademark infringement claim, it is not
`
`the appropriate methodology to assess the veracity of a message that an advertisement conveys to
`
`its target audience.
`
`
`
`Another, and perhaps more fundamental, flaw in the survey’s methodology is that it
`
`effectively assumes that the “Parks” name possesses secondary meaning among the audience for
`
`
`
`11
`
`

`

`Case 5:15-cv-00946-JFL Document 181 Filed 05/10/16 Page 12 of 24
`
`Defendants’ Park’s Finest product.4 As the Court has explained, the “Park’s Finest” name is
`
`capable of conveying a false message only if a consumer who encounters the Park’s Finest
`
`packaging would be deceived into believing that the product was affiliated with Parks. See Parks,
`
`2015 WL 4545408, at *12-13. A consumer who is not familiar with the “Parks” name could not
`
`be deceived by the “Park’s Finest” name, even if that consumer failed to comprehend that the
`
`product is part of the Ball Park family. See id. at *12 (“The mere fact that a consumer may fail to
`
`understand the association between the Park’s Finest name and the Ball Park brand does not
`
`mean that Defendants’ statements are false or misleading. For a consumer who receives from
`
`Defendants’ packaging or advertisements only the message that the product is called “Park’s
`
`Finest”—neither believing the product to relate to [Parks] nor understanding Defendants’ play on
`
`the “Ball Park” name—the name would contain little to no meaning at all, other than the
`
`meaning the name derives from its association with the product.” (footnote omitted)). By
`
`presenting each survey participant with an image of both the Park’s Finest product and the Parks
`
`product, a participant could opine that he or she believed that the products were affiliated or
`
`connected even if that participant had never before heard of the “Parks” name. Outside of the
`
`survey environment, there would be no risk that this person would receive a false message from
`
`the Park’s Finest packaging. That Parks’s false advertising claim turns on whether the “Parks”
`
`name has secondary meaning in the marketplace reinforces the conclusion that this claim is
`
`properly characterized as one of trademark infringement, not false advertising.
`
`
`
`Finally, the survey was not directed at the appropriate universe of consumers. To
`
`participate in the survey, a participant was required to live in one of approximately two hundred
`
`ZIP codes in the country that, according to Parks, correspond to the locations of stores that sell
`
`4
`As will be seen, this observation also explains why this survey does not offer evidentiary support for
`Parks’s contention that the “Parks” name had secondary meaning when Defendants launched their Park’s Finest
`product.
`
`
`
`12
`
`

`

`Case 5:15-cv-00946-JFL Document 181 Filed 05/10/16 Page 13 of 24
`
`“Parks”-branded products. See Lang Decl. Resp. Swann Critique Ex. 2, at 8-9. Limiting a survey
`
`universe to a particular geographic area may be appropriate in a dispute over trademark rights in
`
`a limited territorial market, but to prevail on a claim of false advertising, “the plaintiff ‘must
`
`persuade the court that the persons “to whom the advertisement is addressed” would find that the
`
`message received left a false impression about the product.’” U.S. Healthcare, Inc. v. Blue Cross
`
`of Greater Phila., 898 F.2d 914, 922 (3d Cir. 1990) (quoting Toro Co. v. Textron, Inc., 499
`
`F.Supp. 241, 251 (D. Del. 1980)). Limiting the survey universe to areas where “Parks”-branded
`
`products are allegedly sold was, in effect, an attempt to survey consumers of Parks’s products,
`
`which may not be representative of whether a substantial portion of the intended audience for
`
`Defendants’ Park’s Finest product would be deceived.
`
`
`
`Because these flaws render Parks’s survey unsuitable for supporting a claim of false
`
`advertising, what is left is largely the same evidence that was presented at the preliminary
`
`injunction hearing: the survey that Defendants conducted, which shows evidence of little
`
`confusion among the target audience, and a few isolated instances of purported confusion in the
`
`marketplace cited by Parks,5 which is not sufficient to permit a reasonable trier of fact to infer
`
`
`5
`In support of its request for preliminary injunctive relief, Parks cited to reports by Dietz & Watson, Inc., a
`company that licenses the use of the “Parks” name for use on certain food products, that three consumers who
`contacted Dietz & Watson after the launch of Defendants’ Park’s Finest product appeared to be confused about the
`relationship of the Park’s Finest product to Dietz & Watson’s “Parks”-branded products. This evidence was not
`sufficient to show that Parks was likely to succeed on its false advertising claim, because “[t]he reaction of three
`consumers . . . cannot be extrapolated to reach the conclusion that Defendants’ statements would tend to deceive a
`‘substantial number’ of consumers.” Parks, 2015 WL 4545408, at *13. The same is true now, where Parks needs to
`show not merely that it is likely to succeed on this claim, but that a reasonable trier of fact could find in its favor
`based on this record.
`
`Parks also points to deposition testimony of Lydell Mitchell, one of the two co-owners of Parks, where he
`recounted that he has been personally approached by individuals who mistakenly believed that Defendants’ Park’s
`Finest product was a product of Parks. See Child Decl. Ex. 5, at 72:4-24, ECF No. 138 [hereinafter “Lydell Dep.”].
`When pressed to identify these individuals, he testified that it was “not . . . a whole bunch of people” but rather “just
`a couple here or there” among his personal friends, such as his “golfing buddy” of thirty years. Id. 73:10-13, 76:14-
`79:5. These anecdotal instances of confusion are not sufficient to show that any of Defendants’ statements have a
`tendency to deceive, both because of their small number and because the friends of one of the owners of Parks,
`especially a friend for thirty years, may have a level of “intimate contact” with the Parks brand that ordinary
`consumers do not, which casts doubt on whether their views are representative of the average consumer. See Parks,
`13
`
`
`
`

`

`Case 5:15-cv-00946-JFL Document 181 Filed 05/10/16 Page 14 of 24
`
`that a substantial portion of the target audience would be likely to be deceived. Defendants’
`
`survey is not without some flaws of its own, as the Court observed when Defendants presented it
`
`at the preliminary injunction hearing, see Parks, 2015 WL 4545408, at *15 n.24, but the survey
`
`methodology generally followed the approach described by Rhone-Poulenc Rorer to assess the
`
`message the consumers are likely to receive from the Park’s Finest packaging and whether that
`
`message has a tendency to deceive them. Parks’s survey expert prepared a report that further
`
`critiqued the methodology employed in Defendants’ survey, but the majority of that criticism is
`
`directed at whether the survey utilized