Puffing—Turning a loss into an advertising win.

by Richard Alderman

In its recent advertising, Domino's uses the phrase “puffery,” as a negative term to describe its rival Papa John’s advertising claims of a "better" pizza. Look at the current Domino's ad,  and the Domino's commercial. Domino's declares that Papa John's ad is nothing more than "puffery."

Is the “puffery” claim itself deceptive? What does “puffery” mean? Is the legal definition one the average person would understand? Domino’s says “puffery” is “an exaggerated statement based on opinion, not fact,” possibly leading the consumer to conclude that the claim is untrue. Is that what the legal definition is designed to imply?

Domino’s use of the word “puffery” is based on a case involving Pizza Hut. Pizza Hut sued to stop Papa John’s from saying their pizza was “better,” and lost. The court found the slogan was not actionable. Here is how the court viewed the issue in Pizza Hut v. Papa John’s, 227 F.3d 489. Note how Domino's has now turned this opinion around and uses it as an advertising tool:

Drawing guidance from the writings of our sister circuits and the leading commentators, we think that non-actionable "puffery" comes in at least two possible forms: (1) an exaggerated, blustering, and boasting statement upon which no reasonable buyer would be justified in relying; or (2) a general claim of superiority over comparable products that is so vague that it can be understood as nothing more than a mere expression of opinion.

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We will therefore consider whether the slogan standing alone constitutes a statement of fact under the Lanham Act. Bisecting the slogan "Better Ingredients. Better Pizza.," it is clear that the assertion by Papa John's that it makes a "Better Pizza." is a general statement of opinion regarding the superiority of its product over all others. This simple statement, "Better Pizza.," epitomizes the exaggerated advertising, blustering, and boasting by a manufacturer upon which no consumer would reasonably rely. See, e.g., In re Boston Beer Co., 198 F.3d 1370, 1372 (Fed. Cir. 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. 3DO Co., 1994 U.S. Dist. LEXIS 8677, 1994 WL 723601, *2 (N.D. Cal. 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. 1227, 1234 n.3 (S.D.N.Y. 1990) (stating that a manufacturers claim that its ice cream maker was "better" than competition ice cream makers is non-actionable puffery). Consequently, it appears indisputable that Papa John's assertion "Better Pizza." is non-actionable puffery.

Moving next to consider separately the phrase "Better Ingredients.," the same conclusion holds true. Like "Better Pizza.," it is typical puffery. The word "better," when used in this context is unquantifiable. What makes one food ingredient "better" than another comparable ingredient, without further description, is wholly a matter of individual taste or preference not subject to scientific quantification. Indeed, it is difficult to think of any product, or any component of any product, to which the term "better," without more, is quantifiable.

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