Wednesday, April 06, 2016

Go to the mattresses: Tempurpedic wins TRO against Goldilocks claim

Tempur Seal Int’l, Inc. v. Wondergel, LLC, 2016 WL 1305155, No. 5:16-cv-83 (E.D. Ky. Apr. 1, 2016)
The parties compete to sell mattresses.  Wondergel created a comparative ad featuring a Tempurpedic mattress, though not identifying it by name.  During the ad, Wondergel’s Goldilocks character “makes derogatory statements about the Tempur-Contour mattress and falls back on to the mattress ‘in a manner and accompanied by a facial expression and sound effects that suggest that the mattress is extremely hard and painful for those who use it.’” This video received over three million views on and over 14 million views on Purple’s Facebook page; it was shared over fifty-three thousand times and also appeared (via a YouTube embed) on Purple’s commercial website,

Grimace of pain

The court granted a TRO against the ad. The objectionable elements came from the image and the dialogue: “Looking for some shoulder pain? Try a hard mattress. It may feel like a rock and put pressure on your hips, but it’s the perfect way to tell your partner: ‘Hey baby, want some arthritis?’”  Goldilocks also referred to the hard mattress—a Tempurpedic—as a “prison bed.”
The court found that these statements were likely to be false or misleading. The actor suggested that the mattress caused shoulder pain was “rock hard,” puts pressure on the hips, and may cause arthritis. “The Court has considered Defendants’ argument that the entire commercial is obviously in jest, but the Court unaware of any ‘humor exception’ that would make literally false statements acceptable under the Lanham Act.”  These statements “can hardly be considered puffery, as these statements regarding potential negative health effects clearly cross the line beyond what is permissible advertising.”  (But would reasonable consumers receive the message that the “hard” mattress was literally hard as a rock, or that it was in fact used in prisons?  Also, what is the evidence that the Tempurpedic mattress does not “put pressure on” the hips?)  The court was influenced by the negative cast of the comparison, as compared to flattering puffs.
Wondergel argued that the mattress wasn’t sufficiently recognizable as plaintiffs’ product, but plaintiffs provided sufficient evidence of consumer recognition of its trade dress. Also, Purple’s representative stated in a YouTube public comment section that “Tempurpedic was the hard mattress in the video.”
The court presumed irreparable injury from likely success on the merits, a dubious presumption post-eBay, and noted that the Goldilocks video had been “wildly popular.” A TRO wouldn’t block Wondergel from advertising, and would protect the public.

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