I am swept up along with most everyone else in March Madness (North Iowan Ali Farokmanesh's three pointer and the unexpected upsets -- go Big Red!) As we wait for the Sweet 16 round to begin tonight, my thoughts turn to products claiming to be No. 1 rather than chanting collegiate hoop fans.
Sometimes courts view "No. 1" or "favorite" claims as puffery. An oft cited example is the 8th Circuit's opinion regarding "America's Favorite Pasta." The NAD has recently found a particular No. 1 claim, however, to be a claim and not mere puffing and required substantiation based on sales, market share or consumer perception data.
In sports, determining who's No. 1 isn't always so cut and dry and even winning doesn't always end the debate. The same it appears is true in marketing. In the Evercare case, the Company claimed that its lint roller products were the "#1 Selling Roller in the USA" and "America's #1 Selling Lint Roller* Based on independent national retail sales data." A competing lint roller company (You probably didn't realize there was more than one) argued that sales data showed it was the better selling brand. Both companies relied upon IRI data, which shows retail unit and sales information. However, IRI only covered about 50% of the retail stores where lint rollers are sold causing NAD to find that the parties could not rely upon IRI data alone. However, NAD found the data to be sufficient once it was supplemented by point-of-sale data from major retailers such as Wal-Mart and Petco that do not report to IRI. NAD rejected offered shipping data finding that shipping data only reflects wholesale and not retail pricing and does not show how long product stays on the shelf or whether it was returned. NAD also rejected the challenger's position that the No. 1 claim should be based on unit sales rather than dollar sales. NAD based its position on the fact that the price differential between the products was not that significant and also the fact that the products came in varying sizes so that dollars and not units was likely a more accurate measure of popularity.
So what's the post-game locker room message here? Simply this, when promoting your product as No. 1, first determine if you're making a claim and if you are, parse through the data carefully for both completeness and relevance.
