Olympia Beer was originally brewed in Tumwater, Washington -- which borders Olympia, Washington. In 1999, Pabst Brewing Company acquired the brand, and then shut down the Olympia-based brewery in 2003. Olympia beer is no longer brewed near Olympia, but instead is brewed in various locations around the United States.
The can of Olympia Beer promotes the product as, "The Original Olympia Beer." The can also includes the slogan, "It's the Water," along with a picture of a cascading waterfall, both of which -- at least according to the plaintiff in a lawsuit against Pabst -- are references to the site of the original brewery.
In a class action lawsuit brought in federal court in California, the plaintiff alleged that the reference to "The Original Olympia Beer," along with the "It's the Water" slogan and the picture of the waterfall, mislead consumers into believing that Olympia beer is, in fact, brewed with water from the Olympia area.
In order to determine whether consumers are being misled here, the court must apply a "reasonable consumer" test. Under this test, the plaintiff must show that reasonable consumers are likely to be deceived. Pabst moved to dismiss, arguing that there is nothing misleading about the language and imagery on the beer can because the company has not made any factual representations regarding the source of the water used to brew Olympia Beer.
At least at the motion to dismiss stage, the court wasn't drinking what Pabst was pouring. The court wrote, "It is plausible that a reasonable consumer could see the phrase 'The Original Olympia Beer" and the waterfall image on the can and associate Olympia Beer with the Olympia area of Washington, especially in light of Plaintiff's allegation that the waterfall image 'looks just like the waterfalls' associated with the original brewery in the Olympia area of Washington State." The court further explained that, "a reasonable consumer could construe the phrase 'It's the Water' -- when taken with the can's labeling as a whole -- to suggest that Olympia Beer is brewed using water from the Olympia area."
The court also rejected Pabst's argument that "The Original" and "It's the Water" are non-actionable puffery. Puffery, the court explained, consists of statements that are "vague, highly subjective claims as opposed to specific, detailed factual assertions." The court held that that the beer can, taken as a whole, "makes a sufficiently measurable and specific claim that Olympia Beer is brewed with water from the Olympia area of Washington State."
One important lesson from this case is that ambiguity is usually not the answer. When you're not specific about what you mean, you leave open the door to multiple interpretations of your claim. In other words, even if you don't make a specific representation about the features of your product, if you're unclear about what those features are, a reasonable consumer may make a way a misleading message.
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