CASTEL, U.S.D.J.
Defendant Noom, Inc. ("Noom") markets and sells weight-loss services based
Weight Watchers commenced this action in October 2018. It contends that Noom's advertisements made false statements about both Noom and Weight Watchers. Among other things, Weight Watchers alleges that Noom falsely asserted that its plans facilitate permanent weight loss, whereas Weight Watchers customers follow less-effective "crash" diets; that a consumer will lose more weight with Noom than through Weight Watchers; and that Noom's methods are backed up by extensive scientific research. Weight Watchers also alleges that when it referred to "Weight Watchers" by name, Noom infringed the Weight Watchers trademark, leading consumers to incorrectly believe that Weight Watchers and Noom are affiliated. Weight Watchers brings claims of false advertising, trademark infringement and unfair competition under the federal Lanham Act, 15 U.S.C. §§ 1114, 1125(a), and similar claims under the New York General Business Law and New York common law.
Noom moves to dismiss the Amended Complaint (the "Complaint") pursuant to Rule 12(b)(6), Fed. R. Civ. P. It urges that the disputed advertisements contain statements of opinion and puffery that are not actionable under the Lanham Act. As to the trademark infringement and unfair competition claims, Noom argues that its use of the Weight Watchers mark falls within the doctrine of "nominative fair use," and that the Complaint therefore fails to state a claim for relief.
For the reasons that will be explained, the Court concludes that the Complaint has plausibly alleged a false advertising claim under the Lanham Act and New York General Business Law section 350 as to Noom's statement that its service is "backed by 8 years of research and proven to be effective by several medical journals." (Compl't ¶ 54.) Noom's motion to dismiss is otherwise granted.
Weight Watchers is a commercial provider of weight-loss services and describes itself as "the most recognized and trusted brand in the industry." (Compl't ¶ 11.) It offers monthly subscription plans that are intended to guide subscribers' eating habits and physical activity. (Compl't ¶ 12.) The plans use a points-based system to set a nutritional "budget" based on calories, fat, sugar and protein. (Compl't ¶ 13.) Weight Watchers customers participate in plans through a website or mobile app, in-person workshops, and/or one-on-one calls and messages with a personal coach. (Compl't ¶¶ 14-16.) Weight Watchers states that it has had more than $1 billion in sales in each of the last five years. (Compl't ¶ 25.)
Weight Watchers alleges that it has continuously used certain trademarks in commerce since its founding in 1963, including a service mark for "Weight Watchers" itself, as well as later-adopted marks such as "WW" and marks for its "POINTS Weight Loss System." (Compl't ¶¶ 18-21.) Weight Watchers identifies eight marks registered with the United States Patent and Trademark Office ("USPTO"). (Compl't ¶ 21 & Ex. A.)
According to the Complaint, Noom provides weight-loss services through a mobile app. (Compl't ¶ 30.) In the summer of
Weight Watchers alleges that Noom's advertisements conveyed a false message that Noom's weight-loss plans are effective and result in permanent weight-loss, while implying that Weight Watchers customers will re-gain lost weight and/or receive an ineffective weight-loss program.
Weight Watchers also asserts that certain of Noom's advertisements are likely to mislead consumers into believing that Noom is sponsored by or otherwise affiliated with Weight Watchers. (Compl't ¶¶ 59-65.) Certain of Noom's Facebook ads included the text, "The program that millennials are calling Weight Watchers&Reg; 2.0" and "Millennials are calling it Weight Watchers® for the 21st century." (Compl't ¶ 59.) The Complaint asserts that these statements are likely to result in consumer confusion about Noom's affiliation with Weight Watchers. (Compl't ¶ 60.)
The Complaint brings claims of false advertising, trademark infringement and unfair competition under the Lanham Act, 15 U.S.C. §§ 1125(a) and 1114(1). (Compl't ¶¶ 66-88.) It also brings claims of false advertising and unfair and deceptive trade practices under New York General Business Law sections 349 and 350, and one claim of common-law unfair competition under New York law. (Compl't ¶¶ 89-109.)
Rule 12(b)(6) requires a complaint to "contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'"
"[T]he purpose of Federal Rule of Civil Procedure 12(b)(6) `is to test, in a streamlined fashion, the formal sufficiency of the plaintiff's statement of a claim for relief without resolving a contest regarding its substantive merits.'"
Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a)(1)(B), prohibits any person "in commercial advertising or promotion, [from] misrepresent[ing] the nature, characteristics, qualities, or geographic origin of his or her or another person's goods, services, or commercial activities...." To state a false advertising claim under section 43(a), a plaintiff must plausibly allege "that the statement in the challenged advertisement is false."
Falseness may be established through one of two means: "`that the challenged advertisement is literally false,
Whether based on a literal or implied falsehood, "the injuries redressed in false advertising cases are the result of public deception."
A defendant cannot be liable for advertisements that amount to puffery.
The Lanham Act also does not provide relief for advertisements that are based on statements of opinion.
The Complaint identifies seven categories of allegedly false advertisements from Noom. The Court considers each of them in turn.
The Complaint identifies six ads that Noom ran on Facebook in the summer of 2018, all of which featured the heading, "You aren't still on MySpace, so why are you doing Weight Watchers®?" (Compl't ¶ 31.) The Complaint includes screenshots of the ads, which included the text, "A healthier you in 16 weeks," followed by, "Join 45 million + regular people learning to push past plateaus and tame temptation without starving or stressing out. Noom's 16-week course gives you the behavior change tools to forgive, practice, and (finally) stick to a plan."
The Complaint alleges that these advertisements impliedly conveyed a false message that consumers would lose more weight in 16 weeks using Noom that they would using Weight Watchers, or, alternatively, that Weight Watchers customers would lose no weight in 16 weeks. (Compl't ¶¶ 32-35.)
This is a strained reading of the advertisements. "Subjective claims about products, which cannot be proven either true or false, are not actionable under the Lanham Act."
The advertisements mention Weight Watchers only in the context of comparing it to MySpace, a once-popular social-media site. The comparison of Weight Watchers to MySpace suggests that Weight Watchers has become outdated and that Noom is a more contemporary, modern alternative.
Viewing the ad as a whole, its additional text does not plausibly support a false-advertising claim. The phrases, "A smarter way to lose weight" and "Weight loss for millennials" are consistent with the message that Noom is modern and contemporary, and do not imply that consumers will lose more weight through Noom than Weight Watchers. The phrase "A healthier you in 16 weeks" is broad, and the text immediately following states that Noom users will "push past plateaus and tame temptation. . . ." It makes no express reference to weight loss. Statements touting "[a] healthier you" and "push[ing] past plateaus" could plausibly be understood to describe subjective feelings of physical or mental well-being, and not just weight loss. Statements promoting a "healthier you" fall comfortably within the category of non-actionable puffery, and do not plausibly support a claim of false advertising.
The motion to dismiss the false advertising claim directed toward these advertisements is therefore granted.
Noom published an ad on Facebook that quoted from a reviewer identified as Sally W. (Compl't ¶ 36.) The review stated, "I have
The Complaint does not assert that this review is literally false: That is, Weight Watchers does not urge that Sally W. did not truthfully describe her own experience. Rather, the Complaint asserts that the advertisement impliedly conveyed a false message that Sally W.'s experience is typical of what consumers will achieve using Noom, and left consumers with the false impression that Noom will cause customers to lose weight faster than if they had used Weight Watchers. (Compl't ¶¶ 37-38.)
Weight Watchers does not plausibly allege a false advertising claim based on this ad. The advertisement depicts what a reasonable consumer would understand to be a review from a single customer of Noom. Sally W. is not identified as having special expertise in weight loss or some other status that would afford her special deference. The Court takes judicial notice that customer reviews of businesses, products and services have become common on many websites and mobile apps, including Google, Facebook and Yelp. Reviewers frequently express their views in strong, personal terms.
The Complaint does not allege any facts that would lead a reasonable consumer to conclude that Sally W.'s experience "is representative of what consumers generally will achieve with those programs. . . ." (Compl't ¶ 37.) The ad merely quotes from the type of customer review that has become common online. There is no allegation that the review did not reflect Sally W.'s actual opinion, that she was compensated by Noom, or that Noom misleadingly
In urging that Noom's publication of this review is actionable, Weight Watchers relies on informal guidance that the Federal Trade Commission ("FTC") issued concerning the role of disclosures and disclaimers in ads that tout customer endorsements. 16 C.F.R. § 255.2. The guidance was directed to the enforcement of section 5 of the FTC Act, 15 U.S.C. § 45, and not toward the Lanham Act.
The FTC's guidance includes illustrative examples of when additional disclosures or "adequate substantiation" should accompany a consumer endorsement. For instance, an ad touting successful baldness treatments should be backed by scientific support, and customer testimonials that describe "remarkable" results should be labeled as not being typical.
While this guidance was not issued for the Lanham Act, "courts have held that a `plaintiff may and should rely on FTC guidelines as a basis for asserting false advertising under the Lanham Act.'"
The motion to dismiss the false advertising claim directed toward the Sally W. review is therefore granted.
Noom published an advertisement on Facebook that included a bold-faced header stating, "Lose weight for good." (Compl't ¶ 43.) A different ad contained the bold-faced header, "Permanent weight loss in the palm of your hands." (Compl't ¶ 39.) For both ads, the text immediately following stated: "Join 45 million + regular people learning to push past plateaus and tame temptation without starving or stressing out. Noom's 16-week course gives you the behavior change tools to forgive, practice, and (finally) stick to a plan." (Compl't ¶¶ 39, 43 & Ex. B Ad 9, 10, 5.) Two of these ads also include the text, "A 4-month program with Noom costs about the same as a new pair of shoes. Don't you think that's worth the life-changing results?" (Compl't ¶¶ 39, 43.)
According to the Complaint, the advertisements were false and misleading because "[i]t is not possible to lose weight for good simply by using [Noom] for only 16 weeks." (Compl't ¶ 44.) The Complaint also asserts that the advertisements convey a false message "that consumers will not regain the weight they lose by using Defendant's Program for only 16 weeks, even after they stop using it." (Compl't ¶ 41.)
In moving to dismiss the claim, Noom urges that no reasonable consumer would believe that the Noom course would result in permanent weight loss regardless of the consumer's behavior.
Viewing the ads in their entirety, the Complaint does not plausibly allege that they are literally or impliedly false. The ads tout the prospect of losing weight "for good" through "behavior change tools" that are taught during a sixteen-week course. The Complaint does not plausibly allege how a reasonable consumer encountering the ads as a whole would conclude that Noom guarantees permanent, lifelong weight-loss simply by subscribing to Noom. The ads tout a program to "push past plateaus and tame temptations" without stress. (Compl't ¶¶ 39, 43 & Ex. B Ad 5.) These broad and commendatory descriptions of Noom constitute the type of puffery described by
The motion to dismiss the false advertising claim directed toward these advertisements is therefore granted.
In December 2018, Noom ran video two advertisements on Facebook that included the statements, "Most weight loss programs are based on unsustainable dieting," "Most weight loss programs are based on crash dieting," and a purported consumer stating, "I've tried Weight Watchers and nothing has worked." (Compl't ¶ 45 & Ex. B, Ads 11 and 12.)
According to the Complaint, the video advertisements conveyed the false messages that Weight Watchers used crash-dieting techniques and that the customers of Weight Watchers would regain any weight that they lost. (Compl't ¶¶ 46-47.)
The screenshots submitted by Weight Watchers consist of the following statements, with the times denoted:
(Opp. Mem. 14.)
Reviewing the ads in their video formats, their imagery varies slightly. Both begin with the statement, "Psychologists have reinvented weight loss." In Ad 11, the statement is accompanied by footage of a woman eating pasta, whereas Ad 12 shows a woman posing before a mirror. (Compl't Ex. B.) In Ad 11, statements about "unsustainable dieting" are shown with footage of a woman looking confidently in a mirror, while in Ad 12, the statements concerning "crash dieting" and short-lived results are superimposed against footage of a cake being sliced and served. (
Viewing the advertisements in their entirety, based on the videos annexed at Exhibit B to the Complaint and the additional screenshots that Weight Watchers has submitted in opposition as the non-movant, the Complaint does not plausibly allege that Noom falsely described Weight Watchers as relying on unsustainable, crash-dieting techniques.
The phrase "I've tried Weight Watchers and nothing has worked!" is so vague and broad that it amounts to non-actionable puffery. The phrase "nothing has worked" could conjure various outcomes: It could reasonably suggest that the speaker cheated on the program, did not find the service compatible with her lifestyle, or regained weight once the program ended. The hyperbolic character of the statement "nothing has worked!" is underscored by the statement that immediately follows: "Noom has literally been life-changing!" An assertion that "nothing has worked"
The ads' earlier references to "crash" or "unsustainable" dieting and results that "DON'T last" do not make the claim more plausible. Those statements characterize unnamed weight-loss programs in broadly negative terms but do not impute particular methods to Weight Watchers. In Ad 11, the reference to "unsustainable dieting" is immediately preceded by footage of a woman eating pasta. In Ad 12, those statements appear on screen against the backdrop of a multi-layer chocolate cake slowly being sliced and served. "[A] district court must examine not only the words, but also the `visual images . . . to assess whether [the advertisement] is literally false.'"
Noom's motion to dismiss the Lanham Act false advertising claim directed to this advertisement is therefore granted.
In December 2018, Noom ran a television commercial on at least one cable network. (Compl't ¶ 48.) The Complaint quotes a transcript of the commercial as follows:
(Compl't ¶ 49.) Video of the commercial is also submitted as Exhibit B Ad 13 Video in the CD-ROM annexed to the Complaint. The Complaint alleges that this advertisement impliedly conveyed a false message that the Weight Watchers program is based on diet alone. (Compl't ¶ 50.) According to the Complaint, Weight Watchers actually "urges members to set goals, change habits and embrace a healthy and active lifestyle. . . ." (Compl't ¶ 51.)
The Complaint does not plausibly allege that the commercial conveyed an impliedly false message about the Weight Watchers program. First, the commercial does not expressly refer to Weight Watchers. Second, assuming that a reasonable consumer of weight-loss services understood the reference to "points" and "rules" to be directed toward Weight Watchers, the Complaint does not plausibly allege that the advertisement conveyed a message that Weight Watchers programs are "based on diet alone." (Compl't ¶ 50.) The phrase, "It's not a diet," as uttered in the commercial, is not plausibly alleged to describe Weight Watchers as being exclusively
Noom's motion to dismiss the Lanham Act false advertising claim directed to this advertisement is therefore granted.
The Complaint describes an August 9, 2017 e-mail purportedly sent by "Coach Heather" from a noom.com address. (Compl't ¶ 52.) It had the subject line, "Why Weight Watchers failed you." (Compl't ¶ 52.) The body of the e-mail included the sentence, "Weight Watchers doesn't have an app which means it's not only more expensive, it costs more time making room for it in your life." (Compl't ¶ 52.) The Complaint alleges that this statement is literally false and that Weight Watchers "has had an app since at least 2009." (Compl't ¶ 53.)
Noom notes that the Complaint does not allege the public dissemination of the e-mail. "In this circuit, to constitute `commercial advertising or promotion' under the Lanham Act, a statement must be: (1) `commercial speech,' (2) made `for the purpose of influencing consumers to buy defendant's goods or services,' and (3) `although representations less formal than those made as part of a classic advertising campaign may suffice, they must be disseminated sufficiently to the relevant purchasing public.'"
The Complaint makes no allegations concerning the distribution of this e-mail. It alleges only that the e-mail "was sent. . . ." (Compl't ¶ 52.) The Complaint does not allege that the e-mail was distributed to consumers or to "the relevant purchasing public." Gmurzynska, 355 F.3d at 210. Because the Complaint alleges no facts about the distribution of this e-mail, it fails to plausibly allege that it was "commercial advertising or promotion" under the Lanham Act.
Noom's motion to dismiss the Lanham Act false advertising claim directed to this e-mail is therefore granted.
The Complaint alleges that Noom has claimed on its website that its weight-loss program is "backed by 8 years of research and proven to be effective by several medical journals." (Compl't ¶ 54.) It quotes from an advertisement that states: "Learn the truth about bad habits and how to beat them, so you can stop dieting forever. Your course is backed by 8 years of research and proven to be effective by several medical journals." (Compl't ¶ 54.)
The Complaint alleges that this statement is false or misleading because the Noom program has not been subject to "randomized, controlled studies, and at least three of the studies relied upon by [Noom] are preliminary or pilot studies involving only small groups of people." (Compl't ¶ 55.) It alleges that in the absence of a randomized, controlled study that supports its efficacy claims, Noom's statements that its programs are "proven effective" are false and misleading. (Compl't ¶ 56.) Specifically, the Complaint alleges that no research "purports to address the objective, express statement that users `lose weight for good.'" (Compl't ¶ 55.)
In moving to dismiss this claim, Noom raises arguments that are better suited to a motion for summary judgment or a trial. On the one hand, it urges that the ad's research-related statement is mere puffery because whether Noom is "effective" cannot be measured. (Def. Mem. at 18.) At the same time, the ad itself expressly stated that Noom was "proven to be effective by several medical journals," and Noom urges that Weight Watchers raises only a methodological "quibble" over whether studies show Noom to be effective. (
These arguments are not properly resolved on a Rule 12(b)(6) motion. The Complaint alleges that Noom has falsely claimed that its methods have been "proven effective." (Compl't ¶ 56.) It alleges that Noom has relied on research that does not meet threshold standards for reliability. (Compl't ¶ 55.) The Court is unable to resolve at the pleading stage whether the research submitted by Noom proves the effectiveness of its weight-loss programs, whether that research is reliable, or whether the journals publishing the research are considered credible.
Noom's motion to dismiss the Lanham Act false advertising claim directed to this advertisement is therefore denied.
The Complaint brings claims of trademark infringement and unfair competition under the Lanham Act, 15 U.S.C. §§ 1114(1), 1125(a). (Compl't ¶¶ 59-64, 74-88.) It alleges that Noom's unauthorized use of the "Weight Watchers" mark has caused likely consumer confusion about the source of the ads and led consumers to mistakenly believe that Weight Watchers approved of or sponsored Noom's services. (Compl't ¶¶ 81-88.) For the reasons that will be explained, these claims are dismissed.
Weight Watchers has registered four service marks with the USPTO for the term "Weight Watchers." (Compl't ¶ 21 & Ex. A.) Its mark registered in 1968 was for "planning, executing and supervising diet programs by means of group meetings, courses relating to diet and nutrition, and the distribution of literature. . . ." (Compl't Ex. A.) Later marks have been issued for computer-based and entertainment-based diet-management services. (
The Complaint includes the screenshots of two Noom ads, one of which includes the text, "The program that millennials are calling Weight Watchers® 2.0" and a second stating, "Millennials are calling it Weight Watchers® for the 21st century."
The Complaint alleges that these advertisements are likely to cause consumers to believe that Noom is a Weight Watchers service, or that Weight Watchers sponsors or endorses Noom. (Compl't ¶¶ 60-61.) It asserts that Weight Watchers has registered "Weight Watchers" marks with the USPTO and that Noom intended to benefit from the marks' goodwill. (Compl't ¶¶ 75, 78.)
Noom urges that its use of the Weight Watchers name is "nominative fair use," and that the Complaint therefore fails to allege trademark infringement or unfair competition. "The doctrine of nominative fair use allows a defendant to use a plaintiff's trademark to identify the plaintiff's goods so long as there is no likelihood of confusion about the source of the defendant's product or the mark-holder's sponsorship or affiliation."
In determining whether a defendant's use of a mark falls within the category of nominative fair use, courts look to the eight-factor balancing first adopted by
The eight
The Court considers each factor in turn.
Of the eight
As the Second Circuit noted, however, the
On the first
The second
The third
Having reviewed the eight
Because the Complaint does not plausibly allege that a consumer would be confused as to the source, affiliation or sponsorship of Noom's services, Weight Watchers's claims of trademark infringement and unfair competition under the Lanham Act are dismissed.
In addition to the three Lanham Act claims, the Complaint brings claims of false advertising under New York General Business Law section 350; unfair and deceptive
"GBL 349 declares deceptive acts and practices unlawful and section 350 declares false advertising unlawful. The standard for recovery under General Business Law § 350, while specific to false advertising, is otherwise identical to Section 349. The elements of a cause of action under these statutes are that: (1) the challenged transaction was `consumer-oriented'; (2) defendant engaged in deceptive or materially misleading acts or practices; and (3) plaintiff was injured by reason of defendant's deceptive or misleading conduct."
While the elements for alleging false advertising and infringement under the General Business Law are otherwise similar to Lanham Act claims, the section 349 threshold "is actually higher, as there must be `specific and substantial injury to the public interest over and above the ordinary trademark infringement. . . .'"
For the reasons already explained, Noom's motion to dismiss the false advertising claim under GBL 350 is granted to the same extent as the Lanham Act false advertising claim is dismissed, but otherwise denied. Neither party urges that any different standard or factual allegations should be considered as to the false advertising claim brought under GBL 350. The Court therefor concludes that Noom has plausibly alleged a false advertising claim under section 350 as to the advertisements touting Noom's support in scientific research and medical journals.
For the reasons already explained, the GBL 349 claim of unfair competition and trademark infringement is dismissed in its entirety. The claim is separately dismissed because the Complaint does not plausibly allege a specific and substantial injury to the consuming public, beyond the purported infringement of the Weight Watchers mark.
Similarly, "[t]he elements necessary to prevail on causes of action for trademark infringement and unfair competition under New York common law mirror the Lanham Act claims."
The Complaint plausibly alleges violations of the Lanham Act (Count One) and section 350 of the New York General Business Law (Count Four) as to ads claiming that Noom's program is backed by scientific research and "proven" by medical journals. The motion to dismiss is therefore DENIED as to these claims, but GRANTED as to all other claims.
SO ORDERED.