False advertising case stomped by ambiguity of "original"

Not Dead Yet Manufacturing Inc. v. Pride Solutions, LLC, 2017 WL 4150720, No. 13 C 3418 (N.D. Ill. Sept. 19, 2017)

Patent case with a side order of false advertising.  NDY owns patents concerning ‘quick connect and disconnect’ apparatuses for the assembly of devices known as ‘stalk stompers.‘ A stalk stomper “attaches to the front of a combine or tractor and flattens cornstalks after they have been cut, thereby protecting the tires of the combine or tractor from damage caused by the sharp remains of the stalks.” The ‘quick connect and disconnect apparatus’ enabled faster, easier, tool-free attachment and removal of stalk stompers.

NDY challenged Pride’s advertising for its products as ‘The Original Quick Disconnect Stalk Stomper‘ even though Pride knew that NDY and another manufacturer had sold quick-disconnect stalk stompers before the the Pride QD1 was commercially available. Pride also began a campaign for its QD2 stating ‘This design change replaces a major change we introduced three years ago with the earliest quick disconnect.’  NDY sued under the Lanham Act, the Illinois Uniform Deceptive Trade Practices Act, and the Illinois Consumer Fraud and Deceptive Business Practices Act.

Pride argued that all of their stalk stomper products, regardless of the products’ individual features, were marketed as ‘THE ORIGINAL’ because Pride was the first company to introduce stalk stompers, decades ago, and was the first to refer to their stalk stomper products using the term ‘quick disconnect,’ whereas NDY used ‘quick release.’ Thus, the ‘The Original’ was not literally false, and the QD2 ad just said that the QD1 was Pride’s earliest quick-disconnect product. [This last seems like an implausible reading of that claim.]

The court concluded that ‘The Original Quick Disconnect Stalk Stomper’ was ambiguous. On its face, the ad didn’t indicate that whether the phrase means that the QD1 was the first product to contain a quick connect-disconnect feature, whether it was the first product to be marketed as a ‘quick disconnect‘ device, or whether the product was just one in a line of stalk stompers branded as ‘The Original.’ NDY failed to provide evidence of consumer confusion, so the Lanham Act claim failed.

Interestingly, the court noted that the ICFA and IUDTPA didn’t have a falsity/misleadingness divide: likely deception or capacity to deceive was sufficient, without evidence of consumer perception.  However, the claims still failed because NDY didn’t show it was likely to suffer or actually suffered any harm from the alleged falsity. There was no evidence that the ads would confuse consumers about whether the QD1 was the first stalk stomper product to incorporate a quick connect-disconnect feature, “let alone evidence demonstrating that any such confusion would have an adverse effect on Plaintiff’s sales or otherwise cause harm.”  NDY argued that it didn’t need to prove actual damages because it sought only equitable relief, including redress for unjust enrichment. But there was no evidence that Pride was unjustly enriched by its claim.