5th Circuit, Advertising, Food

'Taste the Truthery.'Fifth Circuit Stars in a Domino's Ad.

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Domino’s Pizza is willing to admit that its pizza used to suck. In fact, it has posted a video documentary about how bad it used to be, and claims to have reinvented itself “from the crust up.”
Stephen Colbert did a segment on the company’s reinvention; he tried a piece on his show, proclaiming it a success: “Is that pizza or did an angel just give birth in my mouth?”
Domino’s is not just reinventing its pizza; it’s also taking on its main competitor, head on. For years, Papa John’s has advertised itself with the motto, “Better Ingredients. Better Pizza.” But that’s just puffery, says Domino. And puffery is not as delicious as it sounds:

Actually, Domino’s wasn’t even involved in the case that led to that Fifth Circuit ruling. What’s the legal story behind the ad?


In the ad, Domino’s head chef stands in front of the Fifth Circuit in New Orleans and reveals that, when challenged there, Papa John’s admitted that its slogan is puffery. The chef then calls in Domino’s lawyer, “Scott,” who reads the definition of puffery: “Exaggerated statement based on opinion. Not fact.”
You’d think, based on this ad, that Domino’s lawyers were involved in this case and spent some time in that courthouse. But, in fact, the only lawyer they had to pay was this “Scott” character. The Fifth Circuit case was Pizza Hut vs. Papa John’s — and Papa John’s actually won it.
Here’s the back story. In 1998, Pizza Hut sued Papa John’s for false advertising. In a jury trial, Pizza Hut’s lawyers presented scientific evidence “proving Papa John’s ingredients didn’t affect the pizza’s taste,” according to About.com. The jury liked the taste of the Hut’s case. A judge ordered the Papa to stop using the “better Ingredients, better pizza” slogan, and awarded the Hut $467,619 in damages.
Papa John’s appealed the ruling and made the “puffery” defense, arguing that it had not violated the Lanham Act because its statement was opinion and not fact. Way back in 2000, the Fifth Circuit overturned the trial court decision and delivered a steaming hot ruling in Papa John’s favor.
Two slices of humiliation for Pizza Hut then: in court to Papa John’s, and having Domino’s steal the legal language from its ten-year-old court battle for its own advertising campaign.
Given the fact that Domino’s is advertising a lawsuit it wasn’t involved in that was actually won by its competitor, it makes sense that Domino’s is touting the company’s “Truthery:”

Stephen Colbert Topples Domino’s New Ad Campaign [Broward Palm Beach Food Blog]
Better Pizza? Bigger Lawsuit [About.com via Techdirt]
A Legal Analysis of Pizza Puffery [Quincy Cove]
The 10-Year-Old Court Ruling That Explains Dominos’ Obscure New Ad [BNet]
Pizza Hut, Inc., Plaintiff-counter Defendant-appellee, v. Papa John’s International, Inc.; Papa John’s Usa, Inc., Defendants-counter Claimants-appellants [Justia]

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