Allegedly copied infomercial can't support misappropriation claim

Morningware, Inc. v. Hearthware Home Products, Inc., 2012 WL 3835825 (N.D. Ill.)

Another chunk of the dispute between these parties who compete to sell ovens online.  Hearthware alleged three false/misleading statements.  First, that Morningware’s oven falsely bears a UL system indicating approval by Underwriters Laboratories.  Second, that Morningware’s oven has an instruction manual and recipe book that falsely states that “[u]nless a user sets a specific cooking temperature, the ... Oven automatically cooks food at the highest temperature of 400° F.”  Third, that Morningware falsely claimed that its oven saves up to 85% of the energy used by a conventional oven and cooks 50% faster than a conventional oven.

Morningware argued that, because its oven complied with UL standards, the UL representation was literally true.  It relied on a 2003 UL Report (the design hasn’t changed since then) purportedly showing that the oven performed within all prescribed UL limits, along with a summary of invoices from UL, allegedly demonstrating that follow-up inspections verified that its oven was still in accord with UL standards.  This wasn’t enough to meet Morningware’s burden.  The UL Report was unauthenticated hearsay, and it wasn’t clear whether UL actually performed the testing.  Basically, summary judgment was improper without more evidence about what the documents in the record meant.

Temperature: Hearthware argued that Morningware’s oven didn’t and couldn’t reach 400° F.  Morningware responded that the statement “[u]nless a user sets a specific cooking temperature, the Halogen Oven automatically cooks food at the highest temperature of 400° F” was literally true because it “says nothing about the actual temperature of the interior of the oven.”  The court found this argument “rather nuanced”; whether it was false or misleading was for a jury to decide, since Morningware didn’t provide any evidence that its oven could cook at 400° F.

Likewise, the energy representations had to go to a jury.  Morningware’s evidence of truth was an unauthenticated letter from a sales manager with his “calculations,” with no evidence that he was qualified to make such calculations; the letter also postdated Hearthware’s assertion of false advertising counterclaims.

The court also dismissed Hearthware’s common law misappropriation claim based on Morningware’s alleged mimicking of Hearthware’s infomercial: e.g., Morningware's infomercial opens with an image of frozen steak thawing in a sink, and then an overweight woman walking in the street, and Hearthware’s infomercial allegedly opens with the same images.  Hearthware also alleged that Morningware “mimics Hearthware's taglines” “touch and go” and “fresh cut to fabulous” with “confusingly similar phrases,” including “touch it and glow” and “frozen to fabulous flavor.”  Morningware argued copyright preemption.  Some courts have (mystifyingly) held that misappropriation claims based on “use” of an idea, rather than “copying” an idea, aren’t preempted.  Regardless of whether this court followed those cases, though, Hearthware’s claim would still be preempted because it was based on alleged copying and distribution of Hearthware’s infomercial.  The “use” here was copying.