unexplained "3x more cutting power" could be false advertising when comparator was unexpected

Fiskars Finland OY AB v. Woodland Tools Inc., No. 22-cv-540-jdp, 2024 WL 3936444 (W.D. Wis. Aug. 26, 2024)

The parties compete in the hand-held gardening tool market. Most of the claims failed on summary judgment, but part of Woodland’s claim against Fiskars for false advertising, based on Fiskars’s statements about the cutting power of its tools, and some of its statements that certain products were designed in the United States, did create factual issues for trial. (Unsurprisingly, this is a former employee case with many different claims, most of which I will ignore, including design patent claims that fail because no reasonable jury could find the protectable elements confusingly similar in light of the prior art.)

Fiskars alleged that Woodland engaged in false advertising when it described its Regular Duty Bypass Pruner as “designed in the USA” because Woodland actually copied Fiskars’s version of the tool—which would mean that Woodland did not design its tools at all. Fiskars presented no evidence of consumer deception, and didn’t show literal falsity. “Woodand’s founders testified that they designed at least some part of every Woodland product in the United States, and Fiskars does not offer any evidence to contest that testimony.”

Woodland’s false advertising counterclaims focused on: (1) statements that certain Fiskars products will cut three times easier or with up to three times more power; (2) statements that its products are designed in the United States; and (3) statements about certain Fiskars products having a titanium blade coating.

Fiskars first argued that Woodland had no statutory right to bring any false advertising claims prior to January 2022, because it could not have suffered any injury from the alleged false advertising before its entry into the market. But Lexmark didn’t preclude this claim. [Weird misdescription of Lexmark follows, but I don’t think it bears on the correctness of the ultimate conclusion.] There was no dispute here that Woodland was a direct competitor “within the zone of interests protected by the statute” whose alleged harm of delayed entry into the market has “a sufficiently close connection to the conduct that statute prohibits” to satisfy the proximate cause requirement for standing. Still, it was common sense that injury didn’t occur before Woodland existed as a company, so it would have to show post-existence evidence of harm to win. And that would also influence any disgorgement award. Still, conduct before Woodland entered the market was relevant to the claim.

Fiskars advertises some of its products as having “up to 3x more cutting power.” Woodland alleged that this statement and similar “2x” or “3x” power-based claims were ambiguous and misleading to consumers because the advertisements/packages didn’t identify what other tools Fiskars’s tools are more powerful than. Ambiguity means consumer confusion evidence is required. Woodland’s survey expert used a test stimulus with the advertised statement “up to 3X more power,” along with a control statement that said, “more power than non-geared tools.” The survey found that, compared to control, an additional 20.1 percent of respondents interpreted the phrase to mean that the advertised tool has up to 3X more cutting power than earlier versions of Fiskars’s product or other competitive products on the market. A reasonable jury could accept this as evidence of deceptiveness. And a reasonable jury could generalize from the one product he tested to the effects of similar phrases such as “cuts 3X easier” and “3X more cutting power.”

Woodlands also challenged packaging stating that certain products are “designed in the United States,” when those specific products weren’t. Fiskars argued that the statements couldn’t be literally false because the term “designed” is ambiguous.  

As to one product, Fiskars admitted it was designed in Finland. And Fiskars didn’t identify multiple reasonable interpretations of “designed.” In the context of manufacturing a product, design means to “decide upon the look and functioning of (a building, garment, or other object), typically by making a detailed drawing or it.” There were genuine disputes of fact on where other products were designed, although not when the only piece of evidence of non-US design was a utility patent listed on the package as covering the product, whose inventors/assignee were all located in Finland. “But the location of an inventor or assignee of a patent does not necessarily dictate where the commercial embodiments of the patent are designed.”

Fiskars also advertises seven of its products as having a titanium blade coating. Woodland’s blade coating testing showed that the products at issue in this claim had less than seven percent titanium in the coating. But the phrase “titanium blade coating” had more than one reasonable interpretation. “It could plausibly mean either that the coating is made entirely of titanium or that the coating contains some amount of titanium, mixed with other compounds that make up the coating.” And Fiskars did satisfy the second meaning. There was no evidence of consumer confusion.