Friday, January 11, 2019

Claims in contracts aren't "advertising or promotion"

Segerdahl Corp. v. American Litho, Inc., No. 17-cv-3015, 2019 WL 157924 (N.D. Ill. Jan. 10, 2019)

This opinion deals with Lanham Act/coordinate state law counterclaims by American Litho against Segerdahl. The parties compete within the direct mail service market, a subset of the printing and marketing industry. American Litho challenged statements on Segerdahl’s website:

Our ability to handle your sampling program from start to finish under one roof means greater security, better quality and shorter turn-time.
We specialize in digital, web and sheetfed offset printing-all housed within our single campus network to provide a level of flexibility not found anywhere else.
Our integrated campus and end-to-end capabilities allow us to easily maintain control of your most intricate projects.
We are the only facility that can execute your entire sampling program on one campus-providing greater security, faster time to market, tighter quality and inventory control.

American Litho also challenged Segerdahl’s statements in its contracts with three of its customers, agreeing to perform all printing services in-house despite subcontracting portions of the work without their customers’ knowledge.  The statements in those contracts weren’t “commercial advertising or promotion.”  Statements to current customers aren’t “communicated for promotional purposes.”

Website statements: These were puffery. American Litho argued that Segerdahl’s website misled potential customers to believe that all printing jobs are handled on-site, but the statements were either exaggerated or so vague that they couldn’t be proven or disproven. American Litho focused on the phrase “from start to finish under one roof,” but the entire statement merely “brags on Segerdahl’s ‘ability’ to handle printing jobs that results in ‘greater security, better quality and shorter-turn time.’” Other similar statements were tied to claims about Segardahl’s generalized awesomeness. “Does American Litho suppose that customers are comparing with all industry rivals to verify whether Segerdahl truly offers ‘a level of flexibility not found anywhere else?’ The Court is doubtful…. One would expect these types of subjective nonquantifiable statements to be posted on a company’s website. That is the very purpose of advertisement.” [Ugh. I liked it when the purpose of ads was to convey actual information.]  Ultimately, these were “nonactionable highly subjective claims.”

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