A warranty card that a consumer finds only after opening the packaging typically is not considered to be “commercial advertising or promotion” for purposes of false advertising under Section 43(a)(1) of the Lanham Act. See Oakley, Inc. v. Bugaboos Eyewear Corp., 757 F. Supp. 2d 1050, 1057 (S.D. Cal. 2010) (a “warranty card” was not advertising “because the warranty card [was] accessible after the product [wa]s sold”).

The Middle District of Tennessee addressed this issue recently in Plateau Casualty Ins. Co. v. Securranty, Inc., No. 2:22-cv-00007 2022 WL 2205263, — F. Supp. 3d — (M.D. Tenn. Jun. 22, 2022) (granting a motion to dismiss).

Plauteau Casualty had terminated its agreement to insure Securranty's protection plan for laptops and cell phones, but the “Terms and Conditions” section of Securranty's Protection Plan continued to state that its obligations under the plan “are guaranteed under a reimbursement insurance policy issued by Plateau Insurance Company.”

Plauteau Casualty sued Securranty for, among other things, false advertising based on the warranty. With no allegations that purchasers are given a copy of the warranty terms beforehand, the court inferred the purchaser of a laptop or cell phone under Securranty's protection plan was unaware of the language in the warranty until after the purchase has been made.

For purposes of false advertising, other courts have held that a product insert which a consumer finds only after opening an item is not “commercial advertising or promotion.”  See Duer v. Bensussen Deutsch & Assocs., Inc., No. 1:14-CV-01589-ELR, 2015 WL 11256568, at *5 (N.D. Ga. July 8, 2015) (“A product insert cannot influence a consumer's purchasing decision because the public would only see a product insert after purchasing the product.”); Wilchcombe v. Teevee Toons, Inc., 515 F. Supp. 2d 1297, 1306 (N.D. Ga. 2007) (“CD inserts that defendants distributed with [an] Album do not qualify as commercial advertising or promotion” because “[t]he public retrieved the CD inserts only after buying the Album, and therefore they could not have had a material effect on purchasing decisions.”); Gillette Co. v. Norelco Consumer Prod. Co., 946 F. Supp. 115, 135 (D. Mass. 1996) (“Advertising or promotion implies that the statements are made to influence a consumer in his or her choice to purchase a product. Statements made inside the product's packaging, available to consumers only after the purchase has been made, do not affect the choice to purchase, that choice having been made at an earlier point.”). Similarly, user manuals provided to the customer upon purchase of a product are not commercial advertising under the Lanham Act, and were not made available to the general purchasing public in sufficient quantities to constitute an advertisement. Marcyan v. Nissen Corp., 578 F. Supp. 485, 507 (N.D. Ind. 1982).

The court concluded the “logical force” of the cited cases applied to the warranty card at issue here.

Furthermore, the court found that allegations in the complaint that the Securranty statements “were used in commercial advertisement or promotion,” and “deceive third parties in a material way,” was “a formulaic recitation of the elements of a cause of action will not do” under Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Also, “[i]f a plaintiff's allegations, taken as true, are insufficient to establish proximate causation, then the complaint must be dismissed.” Lexmark Int'l v. Static Control Components, Inc., 572 U.S. 118, 134 (2014).

Accordingly, the court granted Defendant's motion to dismiss.

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