Wednesday, February 01, 2012

False video enjoined, corrective advertising ordered

Northern Star Industries, Inc. v. Douglas Dynamics LLC, 2012 WL 252846 (E.D. Wis.)

Northern Star, a snow plow manufacturer, sought to enjoin various ads by its competitor Douglas.  Northern Star makes Boss plows, which the court found had a good reputation among professional snowplow contractors “who are savvy with respect to product information.”  Douglas sells Fisher and Western brand plows.  Both parties make trip-blade and trip-edge plows.  In trip-blade designs, the entire blade of the plow moves in the direction of the trip (see below).  In trip-edge designs, the edge of the blade, but not the whole blade, moves backwards to facilitate the trip.  Each design has advantages and disadvantages.
Douglas began a fear-based comparative advertising campaign.  Its advertising account manager noted that safety is material to customers and that creating doubts about the safety of a company's product damages the brand in way that may be impossible to quantify. 
Snowplowing is often done in the dark, in bad weather, and with poor visibility.  Snow can hide low profile, hard, immobile objects, such as manhole covers and ice-shelves.  Various technologies help snowplow blades “trip” over these objects.  The Boss plows have multiposition blades, and in the V-mode the entire blade has to tilt to lift over an object.  Douglas believed that trip-edge designs were safer and performed better.  It thus developed a comparative advertising campaign including videos, for which it built a test truck and used steel pegs to simulate hidden objects.  Though Douglas used different trucks for the Boss test versus the Fisher and Western tests, it averred that “extended-cab, three-quarter ton pick-up trucks” were used in all the tests. 
Raw footage of the tests showed the Boss v-plow tripping and clearing obstacles in three out of four tests that Douglas ran in the scoop and V-mode.  From the court’s description, it appears that Douglas used shots of the Boss cab when the truck was going at 10 or 15 miles per hour purporting to represent the impact on the driver at 5 mph when the truck couldn’t get over the pegs.  However, the video didn’t use the footage showing the Boss v-plow clearing the pegs at those speeds.  The tester had never seen similar obstacles in an actual parking lot; the pegs were used to make sure to hit the entire blade consistently.    
Both parties’ manuals recommend limited speed (Boss 14 mph maximum, Western 10 mph maximum), and direct that operators should always use seatbelts. 
A Fisher/Western trip edge that strikes a hidden object 8-9 inches above the trip edge will not clear the object; the plow will instead stop.  The trip edges start out 6 inches high but wear away and are replaced (protecting the more expensive blade).  As they wear down to about 4 inches, the margin of safety for a plow operator encountering a hidden immovable object decreases. 

Douglas started a print, web-based and video ad campaign.  One Fisher print ad showed a photo of a man with a bloody face holding a piece of raw meat against an eye, and another showed a photo of a shattered windshield.   Both said “IF YOUR V–PLOW DOESN'T COME WITH A TRIP EDGE, IT BETTER COME WITH A CRASH HELMET.”  The court found that these images were intended to trigger doubts about safety and encourage people to read the ad and watch the video (linked in the print ad), which compared various product features.  The comparatively more restrained Western print ads featured a photo of a physician examining two skull x-rays, one of which shows a fracture and which had “Boss” written on it in stylized letters, while the other had an image of a raised manhole cover with a skull on it against black asphalt road and read “V–Plow Nightmare.”  The skull x-ray ad was the only one that specifically mentioned Boss. The ads ran in trade magazines read by snow removal professional and landscapers. 
The ads led to Douglas’s websites, which showed the videos.  Fisher used the heading “GET THE FACTS.”  Fisher’s page said, “If your V-plow has a trip blade, you know the story. There you are, plowing along, feeling good, saving the rest of the world from the storm, when BAM you're in the crash zone wondering what the # @!* you hit. That's because when a trip blade hits a hidden obstacle in vee or scoop, it can't trip. And the results aren't pretty. …. [Fisher’s plow] trips over hidden obstacles in any configuration. It can save you a lot of headaches.”  Western used the heading “TRUTH IN SNOWPLOWING” and claimed that that users of Western plows are “protected in every configuration” which is “just what the doctor ordered.” 
Both videos claimed twice to offer a “feature by feature comparison.”  They claimed that Boss’s trip blade only protects the plow and truck when in straight blade mode, then showed footage of the Boss V-plow failing to clear the steel pegs.  They claimed that the Fisher and Western plows, respectively, would go “safely” over bumps and obstacles in any configuration. 
After Northern Star’s initial C&D, Douglas agreed not to produce more print ads and edited its videos to remove the narrator's statements “Ouch!” and “the trip blade provides no protection to your plow, your truck, and most importantly, you.” But earlier versions of the video remain on Fisher and Western dealer websites and other media postings (like the one I linked above, for now).  Also, the magazines in which the ads were printed remain “on counters, tables and waiting rooms,” as well as online, and the videos “are also spread virally by means of Facebook,” since it was possible to “like” the videos on Fisher’s and Western’s sites.  Dealers have also posted the Fisher and Western videos on their websites. 
In Dcember 2011, a recent Boss customer contacted Boss because he was “very worried” about a video he’d seen showing the plow failing to trip, and he didn’t want to damage his truck or injure himself.  
Prime sales season is September-January.  By January, any sales that are going to be lost will have been. 
Northern Star’s engineering manager looked at the Douglas videos and performed his own tests in an attempt to replicate the results.  Northern Star didn’t request any other information about the tests from Douglas.  It used slightly different sized pins, with springs underneath them to avoid tire punctures, though the manager testified that this wouldn’t affect tripping.  On its test runs, the Boss plow tripped over the pins (remember, this is good, despite what I think of when I think of tripping) at speeds from 15 to 2 mph in scoop-mode and at speeds from 10-3 mph in V-mode.  Northern Star also conducted test videos with manhole covers on its test track in the ordinary course of business; those videos showed scoop-mode and V-mode plows tripping and clearing the covers. 
As of January 2012, Douglas removed from its sites all access to the print ads, and informed the court that in light of information that came to light at the hearing (that is, that they’d used footage of one speed to show the impact allegedly at a different, lower speed), it was “examining” its web videos.  It then advised the court that it planned to change the web ads to include raw footage of more of the plow tests that it ran and to insure that any cab-shot shown on the web advertisements in split-screen matches up with the corresponding test-run, though apparently it left the existing ads up while waiting for the court to act (something I wouldn’t have advised; it reeks of trying to do the barest minimum necessary when it’s obvious that the ads need changing, and may make claims for damages/fees more plausible).   Northern Star responded that the proposed revisions were unsatisfactory, nor did they fix the past and ongoing damage. 
Northern Star identified three claims of concern: First, that the Boss couldn’t trip in V- or scoop-mode.  The court found this claim clearly made in the videos, without qualification.  But Douglas’s raw video confirmed that the Boss could and did trip in those positions, in three out of four tests.  Northern Star’s videos provided further confirmation. In addition, Northern Star called into question the reliability of Douglas’s test methodology, which measured speed without any calibration or verification of the speedometer, as opposed to Northern Star’s tests.  Moreover, Douglas’s use of three different truck models raised questions about the reliability of the comparison; comparisons should control as many variables as possible, and Douglas didn’t.  Northern Star’s tests weren’t exact duplicates of Douglas’s, but the only evidence was that the differences made no difference in outcome and that the methodology, including oversight by an outside expert, was superior.  The manhole videos also demonstrated the Boss plow’s ability to trip in V- and scoop-mode. 
Thus, Northern Star showed literal falsity and didn’t need to show evidence of consumer confusion.  Northern Star also established materiality.  Even though there was no evidence of direct sales diversion, the testimony established likely injury to goodwill. 
Second, that Boss plows risked physical injury to operators but Fisher and Western plows didn’t.  The court disregarded the statements in print ads because they were no longer running, including statements that without defendant’s plow “you ‘BETTER HAVE A CRASH HELMET,’” “you'll experience bone-jarring, windshield banging, steering wheel smacking wake-up calls with every obstacle you encounter,” and the trip blade provides “no protection.”  However, “you're in the crash zone,” “the results aren't pretty,” “[y]ou know the story,” and the blade “cannot trip,” appeared on the websites and were literally false.  Northern Star hasn’t received a single report that any Boss failed to trip and caused injury.  Douglas’s evidence of injuries were “anecdotal” or lacked sufficient reliability.  One story that an interviewee got a “knot” on his head using the Boss lacked sufficient detail to support the “strong” claim that Boss plow users would sustain personal injury.  (In other words, exaggeration about safety was literal falsity.)  Douglas also relied on postings on, but the court gave those posts little weight because, among other things, there is no indication that they are authentic postings of disinterested plow users.  Thus, this claim too was literally false, material, and likely to injure Northern Star. 
Third, that Fisher and Western plows safely trip over obstacles in any configuration.  Northern Star presented evidence that this was not true in all situations.  But Northern Star didn’t show that failure to trip was related to blade configuration; instead it was due to the height of the obstacle and/or the wear of the trip blade.  The court found the claim not literally false, but misleading in context.  Without evidence of actual consumer confusion, Northern Star wasn’t likely to succeed on its third claim. 
The court then turned to the preliminary injunction factors.  It applied a presumption of irreparable injury from Lanham Act violations, not mentioning eBay.  “This presumption, it appears, is based upon the judgment that it is virtually impossible to ascertain the precise economic consequences of intangible harms, such as damage to reputation and loss of goodwill, caused by such violations.”  Douglas argued that Northern Star’s delay rebutted any such presumption.  
Northern Star might have been aware of the campaign as early as mid-July 2011, but didn’t act until the end of September, at which point it gave Douglas two days to stop using the ads.  Northern Star then did nothing when Douglas failed to act until three weeks later, at which point Douglas made only a few concessions.  Northern Star then waited 20 more days until responding, then waited nearly another month to file for preliminary relief.  The court found that, while some delay might have been attributable to settlement negotiations and the complexity of the issues, the delay also undercut the sense of urgency normally accompanying a motion for preliminary relief. 
Nonetheless, the presumption of irreparable injury still prevailed.  Douglas provided no evidence that the delay here lulled it into a false sense of security or that it relied on Northern Star’s delay.  Without any rebuttal of the presumption, the court didn’t need to address other evidence of irreparable injury such as comments received by Northern Star’s dealers.  The other factors favored an injunction: any disruption to Douglas’s marketing campaign was justified because that campaign was false.
The court also determined that, given the importance of the false safety-related message here, corrective advertising would be a key component of the preliminary relief, and ordered the parties to provide more specifics.
Takeaway: claims about the safety of a competitor's product should be carefully vetted. Obviously false editing of tests, as here, will incline the court to pass lightly over otherwise significant issues like irreparable injury post-eBay and delay in seeking preliminary relief.  The corrective advertising will give defendant a bigger black eye than shown in its ads.

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