Is a descriptive marketing name a deceptive trade practice

[Lucille]

...when the description is inaccurate part of the time? A large part of the time? If the name of the line is 'blue frogs' should they be blue? How blue? If 95% are not blue, is the name misleading?
If you name your bearded dragon line 'velvet reds' would an ordinary 'not in the trade' customer be justified in thinking the critter should be red? If only a small percentage of the lizards were ever actually red, would the name be a deceptive trade practice?

Are the names OK when accompanied by a caveat that the critters may or may not ever be red or blue? That nondescript pictures of young specimens may or may not change, and that the buyer may have a plain jane critter forever? What about subsequent sellers that do not include the caveat?

 

[Jay Sommers Reptiles]

Animals should look like what they are represented to be. If accompanied by a picture then all animals offered should look pretty damn similar to the animal in the picture. Anything less is in my opinion not being honest.

 

[Robert Walker]

Lots of great questions by Lucille. My thoughts if you are "not" the originator of the "marketing name":

Is a descriptive marketing name a deceptive trade practice when the description is inaccurate part of the time? A large part of the time? No. Not deceptive if I'm not the originator of the marketing name. If I bought "Orange Dream Ball Pythons" for $10k and then sold the offspring, whether really orange in color, dull orange or brown in color, they are still "Orange Dream". I might grade them different, but they are still labeled "Orange Dream". For me these are two different ads:
1. Teal Blue Pacman Frogs (marketing name)
2. Teal blue colored Pacman Frogs (actual color description)

That nondescript pictures of young specimens may or may not change, and that the buyer may have a plain jane critter forever? What about subsequent sellers that do not include the caveat?[/QUOTE]
It is ultimately the buyers responsibility to research all of this first. If the buyer can not find said information, then they have to decide if they want to purchase the animal on limited info or not. In most cases other sources, outside of the actual seller exist to gather an educated perspective. Forums like this are great examples.

Several large sellers, many of which have ads up right here on Fauna use a single stock photo (their own stock photo) to represent many animals they have for sale. It appears that if a customer wants a (insert animal), they get to see a picture of one of them. That picture might have a varied or uniform pattern, might be bright or might be dull, might be B grade or might be A grade, might be high or low grade picture quality, etc.
Excluding some type of twin scenario, I would suggest that most animals in the herp world visually vary one from another.

"IF" a buyer does not know anything about what I just mentioned, then they might be in for a rude awakening once a different/varied animal arrives at their home. Because you might not know if the seller is using "stock" pictures, it ultimately becomes the buyers responsibility to ask for individual pictures of specimens they are about to purchase and not simply assume that they are going to get a photocopied version of a stock picture. My two cents

 

[sschind]

I pretty much ignore any colors listed in ad titles because the majority of the time the animals do not measure up. A brick red gecko should be brick red not sort of kind of rusty orange. A teal blue frog should be teal blue. A frog with the marketing name of Teal Blue Frog should still be teal blue. If it is a situation where the picture is of an adult and babies and juveniles have to grow into the coloration that is one thing but if someone has an ad up for teal blue frogs and has a picture of a real teal blue frog I would be pretty upset if I bought one and it turned out to be pretty normal. IMO you choose pictures that represent the animal you are selling. If you are selling green baby frogs you don't use picture of blue baby frogs in your ad.

If I am looking at an ad that says things like "picture does not do him justice" or "looks so much brighter when fired up" I would think the animal I was getting would look better than the picture based on the wording. What I would expect is an animal that looks pretty much just like the picture because those are pretty good marketing phrases that work on a lot of people.

If marketing names are exempt from truth in advertising I'm going to have a field day with my next batch of ads. Get ready for some giant flaming hot cheeto striped whatever they ares because hey, its a marketing name and anything goes.

 

[Robert Walker]

then all animals offered should look pretty damn similar to the animal in the picture.

What I would expect is an animal that looks pretty much just like the picture

My ultimate hope is that buyers will not leave room for interpretation of what things "should" or "expect to" look like. Remove all possible doubt and speculation and simply ask for a picture of the exact animal before you purchase.

I think sellers are foolish to sell animals using "only" a stock picture. It is okay to use a stock picture to start a dialogue with a customer, but before the actual sale, send them a picture of the real animal. It is in both parties interest to do this.

 

[Lucille]

Lots of great questions by Lucille. My thoughts if you are "not" the originator of the "marketing name":

Is a descriptive marketing name a deceptive trade practice when the description is inaccurate part of the time? A large part of the time? No. Not deceptive if I'm not the originator of the marketing name.

If an ad is put up for blue frogs, and it is not disclosed that 'blue frogs' is a 'market name' that seems to me as if the ad is a deceptive trade practice, because a buyer may reasonably think that an ad for blue frogs means that blue frogs are being sold. (As is the name itself, IMHO, if the frogs are in fact green most of the time).

Here in Texas we have the Texas Deceptive Trade Practices Act:


(24) failing to disclose information concerning goods or services which was known at the time of the transaction if such failure to disclose such information was intended to induce the consumer into a transaction into which the consumer would not have entered had the information been disclosed;
(7) representing that goods or services are of a particular standard, quality, or grade, or that goods are of a particular style or model, if they are of another;

It is ultimately the buyers responsibility to research all of this first.

Fortunately this conversation regarding deceptive trade practices is linked to a thread where a buyer and seller were having differences of opinion about purchased frogs, so future buyers will be able to review this thread as part of their research and decide for themselves whether the use of such a name is false and misleading, and whether they want to do business with anyone using such a name.

 

[AbsoluteApril]

some names are generally considered common knowledge that they are a line and it doesn't guarantee all will express the trait, such as coral albino boas. They all start out looking like normal albinos, the coral line tends to get incredibly pink. Some corals show tons of it, some hardly any, some babies show none. Someone that isn't aware of how this inheritance works might buy a coral line baby, end up with a more normal looking albino adult (the trait doesn't start to show until the baby is a juvi at a few years old). I use coral as an example since it's a really well known trait in the boa world but someone just coming into this hobby might not know what is common knowledge to others.

So is it the buyer's fault for not fully understanding how the trait works? Can they then try to get money back or return the juvi animal because it didn't live up to their expectations? I would assume someone would try to fully research what they are buying, especially when it comes to color lines so as not to be disappointed if the animal doesn't fully live up to their expectations.

Should the seller explain all of this in the ad? Have a conversation with the buyer before final shipment? or simply expect the buyer to already be aware of what they are buying? I would expect the buyer to be aware.

Just another take on this. I don't know diddly squat about frogs, so if it's general common knowledge that they don't all turn out bright blue or keep the blue color depending on what line it's from? Maybe the buyer just wasn't fully aware or hadn't done enough research on it?

To that end, as a buyer, I would want to see a specific photo(s) of the animal I was buying, especially if expecting it to be a certain color.

 

[Jay Sommers Reptiles]

Robert let me rephrase my point. Let me be more direct. If you are selling an animal and you use a pic than the animals shipped need to look like the pic. This is not a case of someone selling baby okatee corns. Or coral sunglow boas or normal retics.
The ad for said frogs clearly says teal blue pacmans frogs $40. It does not say anything about a strain or bloodline. Real blue pacmans is not a marketed strain. The strain conversation was started after a customer complained. It was used to explain away the fact the frogs weren't blue. It was used to shit the customer up. The seller had no problems explaining away this discrepancy in private to the customer but yet on the boi he played dumb. And acted like he has no knowledge and maybe I could enlighten him. I would say that he should post his explanation to the seller in public so I can call out his bs.
So now I will use less tact and say what this is. The seller lied to the customer flat out. When called out he offered some bs explanation about bloodlines then others started with vitamin deficiency or food or whatever. These are all bs excuses regurgitated by sellers to excuse the fact that they lied by advertising blue frogs with pics of blur frogs and then shipped green frogs. There is no pacmans that turns from green to blue as it grows. That's a lie.
The ad did not say samurai pacman. It didn't say matson line pacman. It didn't say anything about a marketed morph name or strain.
It said teL blue pacman. And had a pic of a real blue paan and that's what the buyer should have got.arying pattern? Sure. But teal blue.
The customers were lied to. Then the smoke and mirrors started. Shell game, mixing words call it what you want. They are all lies used to cover up another lie. Period
Even if the ad said grade c samurai(which it didn't) using a grade a paan pic to sell the grade c is a lie. But remember it only said teal blue pacmans. No made up marketed name

 

[Lucille]

I think sellers are foolish to sell animals using "only" a stock picture. It is okay to use a stock picture to start a dialogue with a customer, but before the actual sale, send them a picture of the real animal. It is in both parties interest to do this.

I personally think it is fraud to use a stock picture that is significantly different (not just a range of quality, but a completely different color) from what the customer will get.

If it is a situation where the picture is of an adult and babies and juveniles have to grow into the coloration that is one thing but if someone has an ad up for teal blue frogs and has a picture of a real teal blue frog I would be pretty upset if I bought one and it turned out to be pretty normal. IMO you choose pictures that represent the animal you are selling. If you are selling green baby frogs you don't use picture of blue baby frogs in your ad.

 

[Robert Walker]

I will try to leave my "final" thoughts, as the topic is too varied, too many different scenarios and possibilities to leave a blanket statement. In Lucille's original post alone, there are 11 questions, I'm not in a position to run all these to ground and all subsequent possibilities either. If someone wants to ask me one simple specific question, I'm happy to answer it.

In some cases it is okay if people disagree. While we may not all agree on topics, sometimes that is just plain okay.

1. I think stock photos alone are a foolish way to sell with, I have stated this already.
2. I think buyers who buy animals off stock photos alone are equally foolish.
3. If someone uses a "marketed name" on actual specimens of that marketed name, they are entitled to do that regardless of grade.
4. BOTH sellers and buyers are responsible in transactions, both bare burdens to make it successful.

For me there really is only one question when it comes to the Teal Blue debate. That is whether or not "Teal Blue" is an industry marketed name OR not?
If it is not an industry marketed name, then it would appear that Teal Blue was the adjective to describe the "color" of the frogs being sold. In this case if green frogs showed up and not teal blue colored ones, then in my opinion that would constitute false advertising.

So if someone can answer the question related to "Teal Blue", then you have my answer and opinion.

 

[Jay Sommers Reptiles]

Teal blue is not a marketed name in any way period.

 

[Robert Walker]

Then I would consider it false advertising to then send a "green" colored frog since "teal blue" was referring to actual color. Thanks Jay for sharing your insight with non-frog folks.

 

[Jay Sommers Reptiles]

I agree 100%