It’s difficult indeed to believe that an attorney would actually file a lawsuit in Federal Court alleging that a reasonable consumer would have been confused into thinking that “crunchberries” are an actual fruit that could be purchased in a box of Cap’n Crunch cereal. Now, I see and hear more ridiculous sorts of things in my practice quite often.
Nevertheless, there is only so much apologizing I can do for the legal profession, only so much denial I can of the criticisms of “frivolous lawsuits” because there are some damned silly lawsuits out there. And “Crunchberries” is one of them. Lawyers are supposed to be a safeguard against this sort of thing, not perpetrators of it.
It’s advertising, people. You’re supposed to be possessed of reasonable intelligence, which might be defined as the ability to understand when a claim is intended to be taken literally and when it’s just “puffery.” See Coca-Cola Co. v. Koke Co. (1920) 254 U.S. 143 (although there is no cocaine in Coca-Cola, the name is not deceptive even when conjoined in advertisements depicting a coca leaf). See also Hayna v. Arby’s, Inc. (Ill.App.1981) 425 N.E.2d 1174 (addressing false advertising challenge to claim that Arby’s sold actual “roast beef” as opposed to the salty meat-like film that they actually put in their sandwiches).
Continuing in the same vein:
- “Grape Nuts” are not actually nuts harvested from grape vines.
- Nothing in Five Alive fruit juice is actually alive.
- Chicken of the Sea is made from fish, specifically tuna.
- There is no blood in a blood orange.
- Jimmy Dean Sausage is not named for James Dean.
- Girl Scout cookies are not made from real Girl Scouts.
- Similarly, shepherd’s pie contains no shepherds (and no sheep, either).
- Mocha Mix contains no actual mocha and was not made in the city of Mocha.
- Angels do not actually eat angel food cake. Devils do not actually eat devil food cake.* You can buy or make quantities of pound cake which weigh more or less than one pound.
- Julius Caesar never ate what we today call “Caesar salad.”
- The marshmallows in Lucky Charms possess no magical abilities.
- “Denver” omlettes can be made anywhere. See also “New York” strip steaks, “New England” clam chowder, and “Philadelphia” cream cheese. But cf. Tequila, Champagne, Parmesan, and Bordeaux, which actually signify geographic origin in their names.
- Hush puppies are made from cornmeal. And sometimes with little bits of onion, but I don’t like them that way. But no dogs or shoes are harmed (typically) in the making of hush puppies.
- Buffaloes do not have wings. Those come from chickens.
- Baby carrots are not special miniature carrots, nor are they harvested early in the season before the carrot can become an “adult.” There is no such thing as an “adult” carrot.
- Baby back ribs come from pigs, not human babies.
- Goldfish crackers do not contain any ingredients derived from goldfish. Similarly, Chick-O-Stick candy contain no products made from chickens, nor is it served on a stick.
- Bear claws are actually doughnuts.
- If you are in the United States, Canada, or pretty anywhere but France, the “French Bread” you are eating was not made in France and was unlikely to have been made by an actual French person. Same with “Italian Bread”; see also “German” potato salad, “German chocolate” cake, “Black Forest” cake, “Irish” stew, some “Swiss” cheese, “Spanish” rice, and “India” pale ale.
Let’s leave skip the jokes about Alfredo sauce.
Hat tip to Charles at Popehat.
* This is largely because there are no such things as angels or devils. If they did exist, I’m reasonably sure that they both would prefer rich, moist, chocolatey Devil’s food cake to dry, tasteless, boring Angel’s food cake.
