Adidas is the “official manufacturer of the jerseys worn on the ice by NHL players.” At least some of the NHL jerseys Adidas manufactures and sells are identified as “authentic.”

The Northern District of New York has denied a motion to dismiss a class action under sections 349 and 350 of the New York General Business Law through Adidas's use of the word “authentic” even though the alleged differences between the “retail and NHL jerseys that form the basis of [P]laintiff's claims were easily discoverable.” Smith v. Adidas America, Inc., 2023 WL 5672576, No. 6:22-cv-788 (BKS/ML) (N.D.N.Y. Sept. 1, 2023).

            Section 349 of the New York General Business Law declares unlawful “[d]eceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service.” N.Y. Gen. Bus. Law § 349(a). Section 350, meanwhile, prohibits “[f]alse advertising in the conduct of any business, trade, or commerce or in the furnishing of any service.” Id. § 350. Thus, section 349 “involves unlawful deceptive acts and practices,” while section 350 “involves unlawful false advertising.” See Bardsley, 2022 WL 814034, at *7, 2022 U.S. Dist. LEXIS 47104, at *19. But both laws were “designed to protect consumers against deception and false advertising.” MacNaughton v. Young Living Essential Oils, LC, 67 F.4th 89, 95 (2d Cir. 2023) (citing Goshen v. Mut. Life Ins. Co. of N.Y., 98 N.Y.2d 314, 323 (2002)). And “[t]he standard for recovery under [section] 350, while specific to false advertising, is otherwise identical to [s]ection 349.” Denenberg v. Rosen, 897 N.Y.S.2d 391, 396 (App. Div. 2010) (quoting Goshen, 98 N.Y.2d at 324 n.1). Thus, claims under these laws are analyzed together. See MacNaughton, 67 F.4th at 96. To state a claim under either section, “a plaintiff must allege that a defendant has engaged in (1) consumer-oriented conduct that is (2) materially misleading and that (3) plaintiff suffered injury as a result of the allegedly deceptive act or practice.” Orlander v. Staples, Inc., 802 F.3d 289, 300 (2d Cir. 2015) (quoting Koch v. Acker, Merrall & Condit Co., 18 N.Y.3d 940, 941 (2012)).

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            In determining whether a product's advertising is misleading, courts must apply an “objective test,” see id. at 581, and “context is crucial,” see Fink, 714 F.3d at 742. That is, “[i]n determining whether a reasonable consumer would be misled, ‘[c]ourts view each allegedly misleading statement in light of its context [i]n the . . . advertisement as a whole.'” See Bardsley, 2022 WL 814034, at *7, 2022 U.S. Dist. LEXIS 47104, at *19–20 (quoting Pichardo v. Only What You Need, Inc., 20-cv-493, 2020 WL 6323775, at *2, 2020 U.S. Dist. LEXIS 199791, at *4–5 (S.D.N.Y. Oct. 27, 2020)).

Relying on the use of the word “authentic,” the Court found that Plaintiff has plausibly alleged that Defendant's representations of its jerseys could mislead a reasonable consumer to believe that the jerseys are the same as those worn on-ice by NHL players.

Among the alleged differences: the quality of the “fight strap” of the “authentic” jerseys is inferior as compared to the fight strap of on-ice jerseys; the fabric of the “authentic” jerseys is half the thickness of the fabric of the on-ice jerseys; the stitching of the “authentic” jerseys is weaker and less durable than the stitching of the on-ice jerseys, the neck holes of the “authentic” jerseys are larger than the neck holes of the on-ice jerseys; the air-flow dimples of the “authentic” jerseys are smaller and less effective than the air-flow dimples of the on-ice jerseys; the logos, numbers, stripes, and names on the “authentic” jerseys are applied via heat pressing while those features of the on-ice jerseys are double-stitched; and the “authentic” jerseys are manufactured in Indonesia while the on-ice jerseys are manufactured in Canada.

The Court cited Casio v. Vineyard Vines, LLC, No. 19-cv-5135, 2021 WL 466039, at *4, 2021 U.S. Dist. LEXIS 25115, at *11 (E.D.N.Y. Feb. 9, 2021), for the proposition that, at the pleading stage, it was sufficiently plausible to allege that there existed two classes of goods—“outlet” and “retail”—and that use of “retail” to advertise the lesser quality “outlet” good was misleading,

Similarly, the allegation that there are two classes of jerseys and that use of the descriptor “authentic” to describe the lesser quality jersey that was not worn on-ice by NHL players was plausibly misleading so as to survive a motion to dismiss.

The Court also noted that “Plaintiff alleges that Defendant markets its jerseys as ‘authentic' and describes them as ‘the same as the one[s] [NHL] players wear when the puck drops' before alleging the myriad ways in which the jerseys marketed by Defendant as ‘authentic' differ from those worn by NHL players, such as the differing fight straps, fabric thickness, stitching, neck holes, air-flow dimples, application of logos, numbers, stripes, and names, and countries of manufacture.”

There is no “alternative explanation” of Defendant's description of its “authentic” jerseys as “the same as the one[s] [NHL] players wear when the puck drops” that “render[s] [P]laintiff's inferences unreasonable.” See Colpitts, 527 F. Supp. 3d at 581. Plaintiff plausibly alleges that Defendant's representations are objectively misleading, and a reasonable consumer acting reasonably under the circumstances was likely to be misled. See Oswego Laborers' Local 214, 85 N.Y.2d at 25.

The Court further noted that whether any differences between the jerseys at issue and those worn on-ice by NHL players were “easily discoverable” only would be applicable to claims based on “omissions” and to claims based on “affirmative” statements.

Other claims based on the laws of other states were insufficiently specified, and there was no duty alleged as necessary for a negligent misrepresentation claim, so those claims were dismissed with leave to amend.

Thomas P. Howard, LLC is experienced in trademarks and false advertising claims nationwide including in Colorado.