Wednesday, February 03, 2021

survey sustains false advertising claim alleging misleading use of military imagery

Mahindra & Mahindra Ltd. v. FCA US LLC, 2021 WL 323253, No. 18-cv-12645 (E.D. Mich. Feb. 1, 2021)

Plaintiffs sued FCA for a judgment of noninfringement of the Jeep grille design in its Roxor vehicle (which dispute mainly took place in the ITC), and FCA counterclaimed for, among other things, false advertising (over which the ITC lacked jurisdiction). Here, the court denies plaintiffs’ summary judgment motion on the false advertising counterclaim, which relates to an ad that allegedly misrepresented plaintiffs’ vehicles’ history with the US military.

The Roxor’s design and construction is “based on a long line of military-style vehicles that [plaintiffs] have been manufacturing and selling in India and around the world for over 70 years, since the end of World War II.” The 30-second ad at issue

features Roxor vehicles of various colors driving on unpaved mountain trails, along with various images of individuals camping, hiking and chain-sawing logs. It also includes various military imagery and references. According to Defendant, “more than 20 seconds” of the 30-second Advertisement displays such military-inspired elements, including the U.S. Army star logo, a vehicle operator wearing camouflage in a camouflage vehicle, an Army green version of the Roxor, a man dressed in Army green attire, and the Roxor logo on an Army green background. Plaintiffs emphasize that the U.S. military “is never mentioned in the commercial.” 

The Advertisement’s voice-over script is as follows:

When the mission calls for military grade grit, call in an off-road vehicle built on more than 70 years of hardcore heritage. The one that makes “there’s no way we’re getting out of here” the best news you’ve heard all day, and answers menacing terrain with, “Is that all you’ve got? Get out there in legendary off-road vehicle: Roxor, from Mahindra. There’s plenty to be done.

FCA argued that this ad falsely evoked a connection with the US military. (Twenty years ago, there were a handful of cases saying that claims like this—the D’s ad falsely connected it to a third party—asserted someone else’s rights and so the non-owner-plaintiff was not the right plaintiff, but that reasoning probably doesn’t survive Lexmark.) (FCA also argued that evoking the US military “suggests a shared-legacy between the Roxor vehicle and the Jeep® brand and the Jeep® brand’s U.S. [mi]litary’s heritage,” though that really seems a bridge too far—no pun intended—and the survey, wisely, didn’t bother to test that idea.)

Hal Poret conducted a survey for FCA, which he concluded found that: (1) at least 46.3% of respondents believe that the Roxor has been used by the military or has a military history/heritage; (2) 70.4% of respondents believe that the Roxor is connected to the military; and (3) 37.0% of respondents believe that the Advertisement’s message pertains to the U.S. military. In response, plaintiffs argued that “[t]here is no evidence in the record that a single Roxor vehicle buyer saw the Advertisement.”

The court found that there was no literal falsity; the ad was ambiguous in using the phrases “[w]hen the mission calls for military grade grit”; “[c]all in an off-road vehicle built on more than 70 years of hardcore heritage”; and “[g]et out there in a legendary off-road vehicle: Roxor, from Mahindra” along with black-and-white footage of a Jeep during World War II.

This was not puffery. The statements and imagery were neither “exaggerated, blustering and boasting” nor a “general claim of superiority over comparable products.” The court would not equate “historic military footage, a claim that something is ‘military grade,’ and a suggestion that company’s 70 years of heritage is connected to the U.S. military” with “vague phrases which are ‘nothing more than a mere expression of opinion.’”

The survey was sufficient evidence for a reasonable factfinder to find misleadingness and deception, at least for purposes of securing injunctive relief. Among the relevant responses:

[What was the main message or message of the commercial we showed you?] Roxor is a new off road vehicle that has a long history of being used in the military.

[What reasons, if any, did the commercial give for choosing to purchase the advertised vehicle?] Military use in World War Two; theyve [sic] been used in the military for years.

[What did the commercial say or show relating to the history or heritage of the advertised vehicle?] It showed pictures of it working in the military from many years ago; Used by our military in the 2nd world war [sic]; That the military used this brand for its jeeps.

Materiality: The court framed this as whether suggesting a “connection” between the U.S. military and the Roxor was “an inherent quality or characteristic,” which I find unhelpful for modern materiality analysis.  Plaintiffs emphasized that it was undisputed that the “clip and reference to ‘military grade grit’ comprise a de minimis portion” of the ad. “[A] rational trier of fact could conclude that the disputed issues relate to the inherent quality of the Roxor,” since there was testimony that plaintiffs’ history and heritage was useful to its brand story. Even though the reference was short, length wasn’t required, given that FCA “pointed to several instances where Plaintiffs considered the advantages of including reference to the military grade, which concern the relevant consumer market..”

Causal link to the claimant’s injury: FCA only sought disgoragement and a permanent injunction, not damages. (Only!) So it wasn’t required to quantify its damages. Rather, “logical likelihood of damages is sufficient.” FCA provided evidence that the ad was likely to cause harm, specifically “causing it to lose singular control over its brand image and diluting the distinctiveness of the brand, rendering its marketing messaging less effective and causing it to have to spend more to communicate effectively.” And: “[Plaintiffs] are trying to leverage the Jeep® DNA just as we plan to. And based on my own experience, it appears [Plaintiffs are] targeting people who are interested in the Jeep® brand.” Although some of the evidence was about the Roxor generally, the Poret survey was sufficient to show the requisite harm causation.


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