May 2016 – Page 2 – Mouse Print*

Most people can tell the difference between a television show and an infomercial made to look like a TV show. More subtle is advertising within television shows or movies, such as when a product is shown casually on screen (“product placement”).

A TV program that aired last week pushed the concept of product placement to a new level. Here is a 30-second clip from Modern Family, where one of its main characters, a real estate agent, laments being outclassed at career day at his daughter’s school by a periodontist.

Click play button

What 99 and 44/100ths percent of viewers don’t realize is that spiel by actor Ty Burrell was actually an advertisement.

*MOUSE PRINT:

That’s right, at the end of the program, about three seconds before the screen goes black, viewers learn that the National Association of Realtors paid ABC for that little explanation that not all real estate brokers are “realtors.” (See story.)

We don’t know much ABC got paid for including that in their program, but it frankly seems a bit manipulative of the audience to have subtle advertising masquerading as program content. What do you think?

As reported in the Asbury Park Press, a 79-year old New Jersey man had a problem with a Kenmore refrigerator he had bought a year earlier. Around Christmas, the gentleman noticed that food in his freezer was getting mushy.

When he contacted Kmart, they told him that he was using the refrigerator improperly because he placed it in his unheated garage, contrary to the instructions in the owner’s manual.

*MOUSE PRINT:

Apparently, you are not supposed to put the refrigerator in a garage where the temperature can fall below 55 degrees. Kmart refused to give the man a refund because of his misuse of the product, but offered him a $75 gift card for the lost food in the freezer, and a 20% discount on a new refrigerator.

That was not satisfactory to the consumer, so he sued Kmart in small claims court for $535.59. The judge asked him a few questions like whether he was told of this limitation in the store before he bought the appliance. The consumer said no.

With that, the judge ruled in consumer’s favor. Incidentally, Kmart did not show up for the hearing. It is a general court rule that if the defendant does not appear for the trial, the plaintiff wins by default.

The question becomes, had Kmart shown up in court, would the consumer have still won?

Here’s MrConsumer’s take: If the consumer had asked for a refrigerator that could be used in a cold environment like a garage, and if Kmart directed him to this particular model, then Kmart would be responsible if in fact the refrigerator was not suited for that purpose. (This is the Implied Warranty of Fitness for a Particular Purpose.) If however the consumer never made known his intentions to use the refrigerator in a manner that most people do not, he was negligent by not following the manufacturer’s instructions and warnings… and should not have won.

A salesperson cannot be expected to read the consumer’s mind and recite all the do’s and don’ts listed in the product manual.

What do you think? Should this consumer have won his case? Add your opinion in the comments section.

Is it a TV Show or is it Advertising?

Man Beats Kmart in Court Over Fridge, But Should He Have Won?