Dyson, Inc. v. Euro-Pro Operating LLC, No. 14-cv-09442 (N.D.
Ill. Mar. 10, 2015)
I’m going to try to go light on the details of the tests
here, featuring evaluations of vacuums’ carpet cleaning power. Bottom line: while Dyson brought some serious
objections to Euro-Pro’s tests and showed likely liability for past wrongful
activity, it was not entitled to a preliminary injunction.
Euro-Pro runs ads claiming that “the one and only industry-recognized test of carpet cleaning,” performed by an independent laboratory, shows that its “Shark Rotator Powered Lift Away” vacuum deep cleans carpets better than Dyson’s “Animal” vacuum.
ASTM standards for carpet cleaning (the world is a big place
with many standards!) use several types of carpet as a stand-in for the variety
of carpets a vacuum will encounter in the real world. They require results to
meet the 90% confidence level, as well as sampling at least three machines from
any given model. (Confidence intervals
can be made smaller by using more samples.)
The settings should be tested as provided for in the instruction manual
for each type of carpet; there are other highly detailed specifications about
testing procedures, including the pattern, speed, and height the tester should use
to vacuum and how to clean the vacuum between tests. The percentage of dirt removal effectiveness is
the average of the geometric means obtained by making three cleaning passes per
test vacuum over each of the four carpet types in the prescribed pattern.
While Dyson’s vacuum adjusts automatically to the type of
carpet, “the names of the settings and the corresponding instructions, handle
nomenclature, and handle icons changed multiple times after the release of
Euro-Pro’s NV650.” The record contained three complete sets of instructional
materials (manual, quick start guide, and hang tag) plus a fourth set of
instructions comprised of a manual and quick start guide that Euro-Pro posted
on its website in December 2014, which weren’t packaged with the vacuums on
store shelves. “Thus, the marketplace has a mix of outdated and current
instructions.” The instructions
generally told consumers to use upper settings (less suction, which means less cleaning
ability) on shag/high pile carpet. Euro-Pro argued that it consistently
intended the middle setting to be used for carpet unless the vacuum was
difficult to push or pull (meaning more suction on high pile carpet unless it
caused trouble pushing/pulling).
Euro-Pro prominently and extensively claimed in its ads to
have independent lab tests to back up its better suction claim. For example,
one of the versions of its short-form infomercial has this graphic:
Its banner ads don’t generally include the disclaimer about
the setting used for testing; Euro-Pro said that this was due to space
limitations, but didn’t show that it would be unable to include a disclaimer if
it changed its graphic.
When the Euro-Pro model launched in July 2014, the person
who made the claims in the infomercials didn’t actually know whether Euro-Pro
had independent lab tests supporting its claim of cleaning superiority, though
his team had been tasked with designing a vaccum that would outclean the
Dyson. He believed that his team would
have ensured that Euro-Pro’s claims were supported by appropriate testing when
the infomercial was released and the boxes with cleaning superiority claims appeared
on store shelves.
The claims at issue are establishment claims, and Dyson
argued that Euro-Pro’s tests failed to substantiate them. The court considered
only third-party testing, not internal testing, and then only third-party
testing that failed to meet the 90% confidence level, since such tests were
noncompliant with ASTM’s requirements. Based on the remaining universe of
third-party testing, the court didn’t find a sufficient likelihood of success on
the merits.
However, when Euro-Pro launched the NV650 in mid-2014, its
representation that independent laboratory testing supported its cleaning
superiority claim was false. It didn’t have such tests then, and it also was
uncertain whether the lab that ran the tests at issue was really independent. Dyson
might ultimately be entitled to damages for the period of time in which
Euro-Pro’s claim was false, but not to a preliminary injunction.
One detail from the testing: the court believed that the
fact that the confidence intervals varied across tests, depending on the sample
size, created a “fundamental problem” with the parties’ evidence. A comparison of mean results, stripped of the
accompanying upper and lower ranges of the confidence limit/confidence
interval, wouldn’t necessarily tell the full story of truth or falsity, since a
broad confidence interval might mean it was pretty likely that any particular
vacuum would diverge from the mean.
(Regardless of the size of the confidence interval, though, the mean is
still the best estimate in any given test.)
The court wanted the parties to address this issue, likely with
statistics experts, as they proceeded.
The biggest fight was about the appropriate settings/level
of suction for the tests, based on ASTM’s instructions to use the manufacturer’s
own settings, which were incredibly hard to figure out/inconsistent. (If there had to be a mini-trial about the
right settings, my inclination would be to interpret the instructions against
the drafter and require the “tests prove” claim to be accurate as to either
alternative; otherwise I’d find that the tests don’t prove the proposition for
which they are claimed.) The court found
that the current instructions told consumers to use the middle setting (higher
suction, thus greater cleaning) unless they experienced difficulty pushing or
pulling the vacuum (in which case they should use the lower-suction setting). The NV650 moved easily on ASTM-compliant
carpet, which I take to mean that it was ok to base claims on the middle
setting going forward, though the court didn’t make a final ruling on what setting
should have been used for testing deep carpet. “Euro-Pro’s revisions cured any
defects in the prior versions of its product documentation.” And claims of past
harm can’t support preliminary injunctive relief.
Taking the relevant tests together, the NV650 narrowly edged
out the DC65, though further development of the record could change this
conclusion. While “Dyson’s injury in the
face of Euro-Pro’s advertising claims is likely to be both significant and
irreparable,” there just wasn’t likely success on the merits yet.
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