Wednesday, September 20, 2000

Papa John's slogan preserved in court

Pizza Hut not allowed damages

The Associated Press

        NEW ORLEANS — A federal appeals court ruled Tuesday that Papa John's ran misleading ads but that the pizza maker does not have to stop using its slogan — “Better Ingredients. Better Pizza” — nor pay $468,000 in damages to Pizza Hut.

        The slogan is puffery, so exaggerated that it cannot be misleading by itself, the U.S. Court of Appeals for the 5th Circuit said.

        In a 3-0 ruling, the court agreed that ads comparing the two chains' sauce and dough did make the slogan misleading. But, it said, Pizza Hut Inc. failed to prove that the comparison got people to buy the pizza, or made buyers believe the slogan and buy pizza because of the slogan.

        U.S. Magistrate William Sanderson of Dallas, where Pizza Hut is based, had ordered Papa John's International Inc. of Louisville never to use the word “better” to describe its pizza, or even to compare its product to Pizza Hut's.

        The three-judge 5th Circuit ruling reversed the Sanderson order and a jury's decision that the sauce and dough ads turned the otherwise legal slogan into false advertising.

        Phil Wittmann, who represented Papa John's before the 5th Circuit, said: “There'll be no necessity for a retrial or anything else. This case is over.”

        Pizza Hut's attorney, Thomas Morrison of New York, had not seen the ruling. He said he would comment after reading it.

        In February 1998, Papa John's boasted that its pizza beat Pizza Hut's in taste tests.

        Then came the ads claiming that Papa John's canned tomatoes made better sauce than Pizza Hut's canned tomato paste, and that its refrigerated dough made with “clear filtered water” was better than Pizza Hut's frozen dough made with “whatever comes out of the tap.”

        Pizza Hut said it could prove that none of those made any difference to the finished pizza.

        Jurors found that the ads were misleading, and the 5th Circuit agreed.

        But, the 5th Circuit ruled, Pizza Hut never proved anybody was fooled.

        “To prove a tendency to deceive, plaintiffs need to show that at least some consumers were confused by the advertisements,” Judge E. Grady Jolly wrote for the court.


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