Select Comfort, which sells Sleep Number/Select Comfort
mattresses, sought a TRO against Mattress Firm (one of the defendants), a
mattress retailer that sells a number of different brands, including
Tempur-Pedic, Sealy, and Serta. It’s one
of the largest Tempur-Pedic retailers, and it doesn’t sell Select Comfort,
though it once did. Select Comfort
alleged that Mattress Firm falsely advertised about the Sleep Number bed, had
salespeople who disparaged the quality and warranties of Sleep Number beds,
falsely told customers it ended its agreement with Select Comfort, and
improperly used Select Comfort trademarks.
Mattress Firm disputed Select Comfort’s allegations and
claimed to have remedied any issues through prompt action. The key TRO issue was likely success in
showing that the alleged representations were commercial advertising or promotion,
using the Gordon & Breach test ((1)
commercial speech; (2) by a defendant who is in commercial competition with the
plaintiff; (3) for the purpose of influencing consumers to buy defendant’s
goods or services; and (4) disseminated sufficiently to the relevant purchasing
public). Mattress Firm primarily argued
that the statements at issue weren’t directed to a sufficiently substantial
portion of the mattress-buying public and not part of an organized campaign to
penetrate the market. The court disagreed,
since Select Comfort identified “flyers and representations” across a number of
states. “While there may be millions of
customers compared to the small number of examples provided in Select Comfort’s
complaint, at this phase, the geographic spread and consistency of the
representations is adequate to create a reasonable inference that the
statements are sufficiently widespread to constitute commercial advertising or
promotion.” Thus, Select Comfort showed
likely success on the merits of its false advertising claim.
As for trademark infringement, Select Comfort alleged that
Mattress Firm used its marks in internet search engines and third-party
websites. On the Mattress Firm website,
no Select Comfort marks/ads appeared.
And if consumers searched only for “Select Comfort,” “Sleep Number,” or
“Mattress Firm” there was no direct overlap. However, if a consumer searched for both parties’ marks, or typed “Does
mattress Firm sell Select Comfort beds?” the results would include a link to
the Mattress Firm website. (In other
words: not even broad matching,
but matching on the defendant’s own trademark!
Eric Goldman should love this. The opinion isn’t clear whether the link
is a paid ad or organic result, but it shouldn’t matter in the slightest—whatever
trademark use is, this ain’t it.) The
link goes to Mattress Firm’s website, where it’s immediately clear that
Mattress Firm doesn’t sell Select Comfort.
Select Comfort argued that consumers would be diverted (even though that
doesn’t describe diversion, just selection from alternatives), but the court
didn’t think that was enough to justify the extraordinary measure of a TRO. (And what would the order be? If the results are organic, how could they
bind Google?)
Select Comfort also alleged that Mattress Firm paid
third-party sites that include links “relating to Select Comfort products
which ultimately lead consumers to Mattress Firm’s website.” At this stage, there wasn’t enough
information to find likely success on the merits.
Having found likely success for false advertising, the court
found that “loss of goodwill and reputation can constitute irreparable harm,”
and “misleading comparisons can diminish a product’s value in the minds of a
consumer.” Given Select Comfort’s
showing that there were inaccurate comparative flyers and sales associates
making representations that Select Comfort customers were dissatisfied with the
low quality/mold in Select Comfort’s products, it was suffering irreparable
harm. (Query whether this is consistent with eBay: is the court inferring irreparability from likely success on the merits?) But Select Comfort failed to show
irreparable harm on trademark infringement because “there is a very narrow universe
of search scenarios whereby a consumer might be re-directed to Mattress Firm’s
website, and once such a consumer is, he will know immediately that he cannot
purchase Select Comfort products at Mattress Firm.” (Why this is reparable is left as an exercise
for the reader.)
The court determined that a narrow restraining order was
justified, requiring Mattress Firms to communicate to its stores about avoiding
specific claims (that Mattress Firm dropped Sleep Number; that Sleep Number has
mold problems/lawsuits based on mold; that Sleep Number offers a shorter
warranty than its actual 25-year warranty; and that Sleep Number beds use “cheap
foam” or “commodity foam”). Mattress
Firm was ordered to stop using any materials containing these representations,
including flyers submitted as evidence to the court. This didn’t require unreasonable efforts and,
if Mattress Firm was correct that it didn’t engage in false advertising/had
already ceased any such conduct, the letter/email wouldn’t cause any harm. But requiring Mattress Firm to control all
websites with possible trademark issues was too much. Mattress Firm was working “to remove any
residual coding which may result in the Google search result with the title ‘Select
Comfort—Mattress firm’ and a link to the Mattress Firm website.” Requiring
Mattress Firm to enjoin all efforts with third-party advertisers was premature.
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