Quote:
I genuinely believe there is ground for a class action lawsuit on the following terms.
----
Legal definition of false advertising:
"Any advertising or promotion that misrepresents the nature, characteristics, qualities or geographic origin of goods, services or commercial activities" (Lanham Act, 15 U.S.C.A. § 1125(a)).
Proof Requirements:
To establish that an advertisement is false, a plaintiff must prove five things:
(1) a false statement of fact has been made about the advertiser's own or another person's goods, services, or commercial activity;
(2) the statement either deceives or has the potential to deceive a substantial portion of its targeted audience;
(3) the deception is also likely to affect the purchasing decisions of its audience;
(4) the advertising involves goods or services in interstate commerce; and
(5) the deception has either resulted in or is likely to result in injury to the plaintiff. The most heavily weighed factor is the advertisement's potential to injure a customer. The injury is usually attributed to money the consumer lost through a purchase that would not have been made had the advertisement not been misleading.
False statements can be defined in two ways: those that are false on their face and those that are implicitly false.
Our Case As Consumers
1. A false statement was made about the multiplayer system last month by IW's PR consultant Robert Bowling. As we are all aware, IW are now currently making false statements about the apparent effectiveness of the new system. These are game developers who know what they're doing isn't for the benefit of their consumers, but they're claming that it will in fact enhance the experience. After considering all the different evidence and arguments, it must be said that this is a false statement by IW. Once the game has been released and this is verified, we will be able to satisfy the first burden of proof.
2. A large percentage of consumers are being deceived into believing that the new system will in fact be better than the old system, when everything points to it being considerably worse.
3. While the announcement will impact PC sales negatively, it will not totally diminish them. If everyone who bought the game knew the multi-player mode was going to be considerably worse, as opposed to improve like IW is claiming, they probably wouldn't buy the game. Also, given how popular the original MW was, any claim of an even better multiplayer experience is sure to affect the purchasing decisions of consumers.
4. The game is being sold all over the world, so part four is easily satisfied.
5. Easily satisfied, again. This has the potential to massively injures consumers, as buying decisions could be made based on IW's claim that the multiplayer experience has been improved upon when in fact it has been considerably downgraded.
Some more legal facts about false advertising:
Types of False Advertising
Today's regulations define three main acts that constitute false advertising: failure to disclose, flawed and insignificant research, and product disparagement. The majority of these regulations are outlined in the Lanham Act of 1946 (15 U.S.C.A. § 1051 et seq), which contains the statutes that govern trademark law in the United States.
Failure to Disclose
It is considered false advertising under the Lanham Act if a representation is "untrue as a result of the failure to disclose a material fact." Therefore, false advertising can come from both misstatements and partially correct statements that are misleading because they do not disclose something the consumer should know. The Trademark Law Revision Act of 1988, which added several amendments to the Lanham Act, left creation of the line between sufficient and insufficient disclosure to the discretion of the courts.
American Home Products Corp. v. Johnson & Johnson, 654 F. Supp. 568, S.D.N.Y. 1987, is an example of how the courts use their discretion in determining when a disclosure is insufficient. In this case, Johnson and Johnson advertised a drug by comparing its side effects to those of a similar American Home Products drug, leaving out a few of its own side effects in the process. Although the Lanham Act does not require full disclosure, the court held the defendant to a higher standard and ruled the advertisement misleading because of the potential health risks it posed to consumers.
Flawed and Insignificant
Research Advertisements based on flawed and insignificant research are defined under section 43(a) of the Lanham Act as "representations found to be unsupported by accepted authority or research or which are contradicted by prevailing authority or research." These advertisements are false on their face.
Alpo Pet Foods v. Ralston Purina Co., 913 F.2d 958 (D.C. Cir. 1990), shows how basing advertising claims on statistically insignificant test results provides sufficient grounds for a false advertising claim. In this case, the Ralston Purina Company claimed that its dog food was beneficial for dogs with canine hip dysplasia, demonstrating the claims with studies and tests. Alpo Pet Foods brought a claim of false advertising against Purina, saying that the test results could not support the claims made in the advertisements. Upon looking at the evidence and the way the tests were conducted by Purina, the court ruled not only that the test results were insignificant but also that the methods used to conduct the tests were inadequate and the results could therefore not support Purina's claims.
Product Disparagement
Product disparagement involves discrediting a competitor's product. The 1988 amendment to the Lanham Act extends claims for false advertising to misrepresentations about another's products.
----
Now, I'm not saying there is enough evidence for us to win in court. But it appears that there is more than enough evidence to at least bring a case before a court and make some more noise about IW's decision.
What do people think? You know, if we pooled our cancelled pre-order money we could probably hire someone.
