Euro-Pro Operating LLC v. TTI Floor Care North America, 2012
WL 2865793 (D. Mass.)
Euro-Pro makes steam cleaners and vacuums, and sued its
competitor TTI, which makes the Hoover brand, for false advertising under state
and federal law, based on a TTI infomercial campaign promoting the Hoover
TwinTank steam mop and WindTunnel vacuum with unfavorable comparisons to
Euro-Pro’s Shark and Shark Navigator respectively. The court denied Euro-Pro’s motion for a
preliminary injunction.
Both the TwinTank and WindTunnel infomercials included
demonstrations of Hoover products and competitor products in a structure
described as “Hoover's Dirty House,” interspersed with testimonials. Euro-Pro
alleged only literal falsity for purposes of this motion.
The TwinTank infomercial repeatedly stated that the TwinTank
rendered other steam mops “obsolete,” sometimes explaining that this was
because the TwinTank added cleaning solution, which was more effective than hot
water alone. At one point, the
infomercial showed a warped wood floor, said that continual exposure to water
could cause this, and said that the TwinTank could clean tough stains faster “so
it's safer for your hard wood floors.” At others, the ad showed the TwinTank
and the Shark side by side with the “obsolete” claim. The court found that this claim was likely
puffery: vague and general. The Pizza Hut
case didn’t change the conclusion that “obsolete” was by itself puffery. To the extent that the Pizza Hut court found actionable factual claims when read in
context of other parts of the ad, that was after a full trial, not on the
limited record available at the preliminary injunction stage. And the court reviewed the other parts of the
infomercial and wasn’t convinced that the ones to which Euro-Pro objected were
literally false. Anyway, the Pizza Hut court found only
misleadingness, not literal falsity.
The court turned to specific issues, like the comparison
between a TwinTank and a Shark used to clean tile soiled with permanent marker;
the TwinTank removed the ink entirely while the Shark didn’t “because a steam
mop that cleans with just steam can't get it completely clean.” Euro-Pro argued that this was inconsistent
with TTI’s acknowledgement that a steam-only setting can disinfect, but there
was a difference between cleaning and disinfecting. “It is entirely possible that a mop using
water-based steam, and no other cleaning solution, could rid a surface of
microorganisms potentially harmful to humans without completely ridding the
surface of soil, dirt or other non-harmful debris free of microorganisms.” The claim might be misleading, but Euro-Pro
didn’t proceed on that theory. Euro-Pro
also argued that the permanent ink demonstration was literally false for lack
of corroboration by independent testing, and that the demonstration must have
been rigged. The parties presented
conflicting evidence on the test results, and argued about whether the test was
performed fairly (for example, whether the TwinTank was moved across the stain
more slowly or in more strokes than the Shark was). But regardless, the court wasn’t persuaded
that the demonstration conveyed an unambiguous message. “Consumers could draw various messages from
the demonstration, ranging from ‘the TwinTank always cleans any hard surface
better than the Shark’ to ‘under certain conditions, the TwinTank may clean
tile better than the Shark,’ to ‘the tile on the left has been stained more
severely than the tile on the right.’”
Given these messages, none of which were necessarily implied, there
couldn’t be literal falsity.
Unfortunately, the court has closed its eyes to the
realities of ad communication. This type
of dissection of an ad message leaves essentially nothing within the category
“literally false.” No reasonable
consumer would expect the ad to be comparing differentially stained
tiles—that’s the definition of an unfair comparison, and the consumer doesn’t
want to know that the advertiser’s product does better on a less stained tile
than the competitor’s does on a more stained one; the consumer wants a
head-to-head, relevant comparison. At
best, the court has identified a message that might be inferred by a skeptical
consumer who thinks the company is trying to fool her—which is not how courts
are supposed to analyze ads, since the whole point is to protect consumers
against false factual representations rather than requiring them to be skeptics
about the truth of claims conveyed by ordinary logic. (Indeed, “this car gets 55 mpg” might not be
making a literally falsifiable claim according to this view if the consumer
thinks “this ad might have rigged the tests.”)
Likewise, “under certain conditions” hides the very question at issue:
the consumer wants to know how the products perform under the same conditions, whatever those
conditions are, and Euro-Pro’s evidence went directly to that point. Its evidence of falsity might not have been sufficient at this point, but the
allegedly false statement is incredibly clear: given the same stain, the
TwinTank performs better.
Regardless, the court refused to go further. “Certainly, Euro–Pro may have at the very
least succeeded in casting at least some doubt on the accuracy of demonstration
by, for example, pointing out that the ‘before’ version of the marker-stained
tile placed next to the Shark is likely not the same tile shown in the ‘after’
version.”
Euro-Pro also objected to a comparison showing the TwinTank
v. the Shark cleaning auto grease. While
the TwinTank removes the grease entirely, the Shark doesn’t, and the host says,
“even though mine [the Shark] is on ‘Scrub,’ it appears as if it could actually
be on ‘Smear,’ because once I'm through and I smeared it, my mess is worse than
what I started with.” Euro-Pro’s
arguments were similar as with the ink, and the court’s reactions also. “The grease demonstration neither explicitly
states nor necessarily implies a specific unambiguous message and thus Euro–Pro
does not at this stage of the litigation appear likely to prevail on its
assertion that the demonstration is susceptible to a literal falsity claim.”
Next, Euro-Pro argued that four sections of the WindTunnel
infomercial falsely touted the WindTunnel’s suction power in a sealed, airtight
environment. For example, the ad showed
the WindTunnel purportedly using its suction power to collapse five-gallon
water cooler jugs connected together with gaskets, after a host had first used
a hammer on the jugs to show how tough the jugs were. The ad also showed the WindTunnel lifting 120
pounds with suction, with a warning “Gasket added do not try this at home” and
a host stating, “if the Hoover WindTunnel Air's suction can lift 120 pounds,
imagine how clean your home will be.”
And the WindTunnel supposedly stuck itself to a wall through suction
(again with the gasket added, do not try this at home warning). The ad then transitioned to the product’s
cleaning performance on floors.
Euro-Pro argued literal falsity because these claims
purported to indicate something about actual performance, but were
“unrealistically ideal.” Its evidence
suggested that the performance shown “was only possible under sealed suction
conditions,” which didn’t reflect the real world. But the infomercial, the court ruled, made
clear that the demonstrations were conducted under specialized and ideal
conditions.
Euro-Pro then challenged the WindTunnel infomercial’s
comparison of the WindTunnel, a Shark Navigator, and a third vacuum trying to
vacuum under a chair. The Shark
Navigator was “even worse” than the third in its inability to fit while its
handle was vertical or when the handle was parallel to the floor. The host concluded, “unless you actually like
moving furniture, you need to get a Hoover WindTunnel Air.” Euro-Pro argued that this was false because
the host failed to tilt the Shark’s handle to the left, which would have
allowed it to fit under low clearances.
This allegedly failed to comply with industry standards for
testing. “This Court's role, however, is
to evaluate whether the infomercial sections at issue violate the Lanham Act,
not industry standards.” The infomercial
didn’t say it was using any specific industry standards, nor was that a
necessary implication. And (making the
same mistake as before) “consumers could draw various messages ranging from the
message most feared by Euro–Pro, to wit, ‘the Shark Navigator is unable to vacuum
under chairs 11.5 inches or lower,’ to the message that Euro–Pro asserts best
explains what actually happens during the demonstration, to wit, ‘in order to
vacuum under chairs 11.5 inches or lower with a Shark Navigator, you'll need to
do more than simply lower the handle—maybe consider twisting it to one side.’”
The next alleged WindTunnel falsity purported to show that
the HEPA filter in the WindTunnel was more durable than the filters in two
competing products. One host showed the
Shark Navigator’s filter and said it was made of foam rubber, then tore it in
half. “How long do you think that's
gonna last?” By comparison, another host
said of the WindTunnel filter, “there's a complete 360–degree seal around this
super strong honeycomb material that is fully washable.” He twisted the filter
back and forth.
Euro-Pro argued that the WindTunnel didn’t, as claimed,
capture 99.97% of the allergy-causing dust, pollen, and pet dander that enters
the vacuum. Its evidence of independent
testing confirmed as much. But the
filter might trap 99.97% of those materials that
pass through the filter, and the infomercial didn’t assert more than
that. “The specific quotation is ‘[t]he
Hoover WindTunnel Air has a filter with HEPA media. It captures 99.97% of
allergy-causing dust, pollen and pet dander.’ The term ‘it’ in the latter sentence can
clearly be read to refer to the filter with HEPA media, not to the WindTunnel;
the infomercial does not expressly require nor necessarily imply an alternate
reading.” (This must rest on the idea
that, in theory, what consumers care about could be the filter that they never
use alone, not the product as a whole; we are now in “it depends on what the
meaning of ‘is’ is” territory.) No
literal falsity.
Euro-Pro also didn’t like tearing the filter in half; it
pointed out that the filter torn in half was the Shark’s pre-motor filter, not
the wholly separate HEPA filter, which was the appropriate comparator. TTI responded that it also demonstrated the
WindTunnel’s pre-motor filter, comparing apples to apples. (While telling consumers that it was
comparing oranges to oranges.) “Although
the infomercial switches quickly from discussing the WindTunnel's HEPA filter
while showing an artist's rendering of the HEPA filter, to comparing the ‘dust-trapping
filters’ included in the WindTunnel and its competitors, without informing
consumers that the WindTunnel's dust-trapping filter is distinct from its HEPA
filter, the filter demonstration does not appear to include any explicit
statements or necessarily implied messages that are literally false.” Okay, that’s not even trying; showing a
picture and discussing a completely different thing is a classic example of
falsity by necessary implication, or even straight-up falsity. The court just doesn’t think this case is
worth its time.
Euro-Pro also challenged Hoover’s claim that the WindTunnel had
a “super-sized capacity dust cup which holds 25% more dirt than the
competition.” Measured according to
American industry standards using cork pellets, Euro-Pro argued, the
WindTunnel’s dust cup was only 9% larger than the Shark Navigator’s dust
cup. TTI argued that it was better to
use the European industry standard using elastomeric pellets, and that its cup
capacity was 25% larger on average using that standard. Euro-Pro pointed out that the 25% figure made
no mention of averages, that even under the European standard the dust cup
wasn’t 25% larger than the Navigator’s (already identified as the competition
in other parts of the ad), and that “Hoover’s self-identified class of vacuum,”
which was never defined in the infomercial, included a Euro-Pro product with a
larger dust cup.
The court was slightly more impressed by this argument. “The asserted figure is much more specific,
and much more readily falsifiable, than general claims regarding obsolescence
or than demonstrations asking consumers to ‘imagine’ what the demonstration
might imply about a product’s use in the home.”
Still, the court found this wasn’t literally false. The 25% claim could be absolute, or just
average. “The absence of any mention of
averages reinforces (but does not compel) Euro-Pro’s preferred reading, and the
opacity of the unmodified phrase ‘competitive class’ does little to help (but
does not preclude) TTI’s preferred reading; the Court’s role, however, is not
to choose which reading is sounder but to determine whether, after ‘considering
the advertisement in its entirety,’ one reading is so obvious that ‘the
audience would recognize the claim as readily as if it had been explicitly stated.’”
Finally, Euro-Pro argued that part of the WindTunnel
infomercial purporting to show children putting together the competing vacuums
was false. Five- and six-year-old
children competed, and the child putting the WindTunnel together finished
first. Euro-Pro argued that Hoover
admittedly coached each child and gave them multiple opportunities to practice,
but didn’t disclose this. But that
wasn’t literally false.
Even if Euro-Pro had established literal falsity,
irreparable harm wouldn’t be presumed in the absence of directly comparative
claims, and only some of the challenged claims were directly comparative; the
assertion that cleaning “with just steam” is incomplete wasn’t directly
comparative, for example (I don’t get that, since Euro-Pro cleans with just
steam). Euro-Pro’s evidence of
irreparable harm was too speculative.
Though during the course of the litigation, Target and Sears decided to
discontinue some Shark products to “make room” for the TwinTank, Euro-Pro
didn’t show that this harm was related to the infomercials. In fact, the Shark models dropped by Target
weren’t the ones in the ads, and Sears stopped ordering Sharks before the first
ad aired.
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