omitting "all" or "every" can avoid literal falsity of general claim

SkyHawke Technologies, LLC v. GolfzonDeca, Inc., No. SACV 19-1692-GW-PLAx, 2020 WL 6115095 (C.D. Cal. Aug. 3, 2020)

A limited preliminary injunction turning on the difference between literal falsity and implicit falsity: claims that human beings walked each golf course at issue to chart it were literally false, but more general claims of human walking were not.

Plaintiffs sought to stop defendants from advertising that their GolfBuddy products use information “based on walking courses” and that therefore they are the “most accurate.” Defendants contented (in patent litigation) that “[DECA System, the entity responsible for the maps,] primarily uses publicly available Google Earth map data as the course for the geographical data used to create its course data.... in some instances [Deca] may hire a third party contractor to manually survey the course.” Defendants conceded that Deca does not walk every course.

However, most of the statements plaintiffs challenge weren’t literally false. E.g., “GolfBuddy specializes purely in the manufacture of golf distance measuring devices and walks golf courses to create ground-verified accurate maps, which increases the supreme accuracy of their GPS devices over competitors who simply use satellite imagery”; “GolfBuddy … used teams of expert mappers to walk courses and create ground-verified data maps that give precision accuracy and they promise precision accuracy for over 36,000 courses”; “GolfBuddy is … the only company that focuses 100% on golf, maps courses on foot for added accuracy, and provides completely fee-free access to its extensive worldwide database of courses.” [I do wonder what a survey would show about this and what a non-leading way to ask about it would be—this might well be a case where consumers are left with an impression of fully walked courses but prodding them to think about the statement would lead them to realize the ambiguity.] Plaintiffs didn’t convince the court that the necessary implication was that defendants walk every course.

In addition, “ground-verified accurate maps,” “precision accuracy,” and “added accuracy” were puffery.

However, one statement by a GolfBuddy marketing coordinator was literally false: “So GolfBuddy, our motto is Accuracy Matters. And the reason we say that is because every single course that’s in our database out of the 48,000 are walked by foot. So that means we send mappers to that course and they walk every single hole by foot with our own GPS devices.”

The court applied a presumption of irreparable harm to literal falsity, even without an explicit comparison. “[G]iven the small market for golf rangefinder devices, the obvious falsity, and the very narrow scope of the proposed injunction, the Court finds that ‘traditional principles of equity’ warrant a finding of irreparable harm.” The remaining factors also supported a preliminary injunction precluding defendants from claiming that they walk every course in their map library “(until they do walk every course).”