It's an ex-Lanham Act case without evidence of materiality

Not Dead Yet Manufacturing Inc. v. Pride Solutions, LLC, 2018 WL 688324, No. 13 C 3418 (N.D. Ill. Feb. 2, 2018)

Previous discussion.  The court reconsidered its summary judgment decisions on plaintiff’s motion for reconsideration, but left the false advertising result the same.  The parties make “stalk stompers”—that is, “devices that attach to the front of a combine or tractor to flatten cornstalks after they have been cut.”  The allegedly false statements at issue concerned defendants’ ads claiming to have the “original” stalk stomper, when in fact plaintiff introduced the innovation at issue (thus also bringing about related patent claims).  Not Dead Yet argued that literal falsity was a factual issue to be determined at trial, and that the court should not have held that the challenged claims were at least ambiguous and thus not literally false. Without evidence of actual consumer confusion, the court granted summary judgment for defendants.

Summary judgment on a fact issue can still be appropriate if the evidence wouldn’t allow a reasonable jury to return a verdict for the nonmoving party on that issue.  Moreover, “[t]he Seventh Circuit appears to recognize that a district court may make the initial determination regarding a statement’s ambiguity and the need for evidence of actual consumer confusion. See Schering-Plough Healthcare Prod., Inc. v. Schwarz Pharma, Inc., 586 F.3d 500, 513 (7th Cir. 2009) (“[A plaintiff] cannot just intone ‘literal falsity’ and by doing so prove a violation of the Lanham Act.”).”  [I’m teaching this case tomorrow!] “Determining whether a statement is clear or ambiguous is the type of exercise that courts routinely conduct,” and other cases have done so as a matter of law.

Regardless—and contributing to continued uncertainty on exactly what a matter of law/matter of fact is when interpreting advertising—the court reaffirmed its prior result based on Not Dead Yet’s failure to show likely injury because it failed to show that the “original” claim would have any effect on consumers’ purchasing decisions.