Intellectual Property Law

Chapter 23 Case Study Answers

Case Study: Fit Forever’s new ad states, “We can get you fitter than you’ve ever been!”
The ad also states, “Unlike our competitor, Fusion Fitness, our workout classes never
have more than 15 individuals.”

Activity: Indicate whether the statements made by Fit Forever are actionable as any form
of unfair competition and who, if anyone, might bring an action.

The statement “We can get you fitter than you’ve ever been!” is not
actionable. It is not a statement of fact but puffing, which is a subjective
boast or mere statement of opinion. Such superlative and vague statements
are not actionable.

The statement relating to class size, if true, is not actionable. If it is not true,
Fusion Fitness can bring an action for trade libel or product disparagement.
It is clear that the statement disparages Fusion Fitness. A consumer could
bring an action for false advertising under state laws, and Fusion Fitness
could also bring an action under Section 43 of the Lanham Act for
misrepresentation/false advertising of both Fit Forever’s services (false
statement about its own services) and those of Fusion Fitness (false statement
about another’s services).