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The 10-Year-Old Court Ruling That Explains Dominos' Obscure New Ad

Does a 10-year old ruling from the 5th Circuit Court of Appeals on the definition of advertising "puffery" make you feel like a pizza? Me neither, but that's not the conclusion reached by Dominos (DPZ) in its new ad, which rakes up a 10-year-old appellate ruling from a case that it was not involved in to promote its pies:

The commercial shows Brandon Solano, Dominos' head chef, standing outside the appetizing Federal Court of Appeals building in New Orleans, talking about pizzas at rival chain Papa John's and its slogan, "Better Ingredients. Better Pizza." He says:

When challenged in this court, they stated their slogan is puffery. What's puffery?
Feeling hungry yet? A lawyer (!) in the ad then explains that puffery is:
An exaggerated statement based on opinion. Not fact.
Yum! Or perhaps not. For those of you who haven't been following the Pizza Wars -- i.e. Dominos' entire target audience -- the ad is a reference to Pizza Hut v. Papa John's, one of the stupidest cases to ever be heard by the judiciary.

Pizza Hut wanted to prevent Papa John's from using the slogan "Better Ingredients. Better Pizza." The companies took their dispute to the U.S. Supreme Court (it was personal; both companies are based in Louisville, Ky.). Thankfully, the Supremes turned them down but not before their legal papers described how both chains actually make their pizzas: Papa John's tomato sauce is canned before being reheated; its dough is made in regional factories. Pizza Hut's tomato sauce is cooked and then bagged before water is added from the restaurant faucet; its dough is frozen.

Now, I'm as much a fan of section 43(a) of the Lanham Act as the next man, but this is ridiculous. It's completely adrift from Dominos' current ad strategy, which is to beg forgiveness for years of lousy pizzas and ask consumers to give them a second chance now that they've revamped their product from top to bottom.

What Dominos is probably trying to do is borrow the "punching upward" strategy, which Papa John's used successfully against Pizza Hut, the dominant chain. Punching upward -- challenging the bigger competitor in the category -- works because underdog brands have nothing to lose and because when the bigger brand responds it only draws more attention to the smaller brand. (Conversely, big brands should never punch downward, because consumers hate bullies and because you don't want to give your challengers free publicity.) However, Dominos has more sales than Papa John's -- which makes this ad doubly illogical.*

Knowing that Pizza Hut v. Papa John's was a disaster for both companies (the pair were subjected to humiliating editorials across the land for wasting the U.S. Supreme Court's time with frivolous appeals) Dominos' Solano then concludes his ad with the results of a taste-test survey and this "sue-me" statement:

Our pizza tastes better and that's not puffery, that's proven.
So ... the ball is in Papa John's court. Dominos' is making a specific fact claim that is obviously ripe for a legal challenge. The only question is whether Papa John's can resist the temptation to reach for its lawyers.

*This item originally failed to mention that Dominos was the bigger chain. Thanks to BNET reader Dan O'Day for pointing this out in the comments section.

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