Affirming the trial court, the court conceded, contrary to that tribunal that specifically, "Basic Research asserts that the phrase ‘use of another's advertising idea in your advertisement' should not be limited to claims of misappropriation or wrongful taking of another's advertising idea, but should rather include any form of ‘misuse,' including deceitful advertising. Such an interpretation may be appropriate where the underlying injury is directly caused by the deceitful advertising, regardless of the product's failure to perform." Id. at 581.
Although the court thereafter concluded that the slogans, "Eat All You Want And Still Lose Weight," and "we couldn't say it in print if it wasn't true," id. at 580, fell within the "failure to conform" exclusion, it did not provide any substantive analysis as to why such phrases evidenced an objective failure of the product to conform with representation where they both depended on subjective experience of the product's user.