Design Resources, Incorporated v. Leather Industries of America

Filing

PUBLISHED AUTHORED OPINION filed. Originating case number: 1:10-cv-00157-WO-LPA. [999604547]. [14-1990]

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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-1990

DESIGN RESOURCES, INC.,
Plaintiff - Appellant,
v.
LEATHER INDUSTRIES OF AMERICA; DR. NICHOLAS J. CORY; ASHLEY
FURNITURE INDUSTRIES, INC.; TODD WANEK,
Defendants - Appellees.

Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro.
William L. Osteen,
Jr., Chief District Judge. (1:10-cv-00157-WO-LPA)

Argued:

May 13, 2015

Decided:

June 18, 2015

Before NIEMEYER, DUNCAN and THACKER, Circuit Judges.

Affirmed by published opinion. Judge Duncan wrote the opinion,
in which Judge Niemeyer and Judge Thacker joined.

ARGUED:
John Raymond Neeleman, LANE POWELL, PC, Seattle,
Washington, for Appellant.
William Andrew Copenhaver, WOMBLE
CARLYLE SANDRIDGE & RICE, LLP, Winston-Salem, North Carolina;
Richard Dominick Milone, Jr., KELLEY DRYE & WARREN LLP,
Washington, D.C., for Appellees.
ON BRIEF: Kristin Beneski,
LANE POWELL, PC, Seattle, Washington, for Appellant.
Cameron
Argetsinger, KELLEY DRYE & WARREN LLP, Washington, D.C., for
Appellees Leather Industries of America and Dr. Nicholas J.
Cory; Brent F. Powell, WOMBLE CARLYLE SANDRIDGE & RICE, LLP,
Winston-Salem, North Carolina, for Appellees Ashley Furniture
Industries, Inc. and Todd Wanek.

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DUNCAN, Circuit Judge:
Plaintiff-Appellant Design Resources, Inc. (“DRI”), appeals
the

district

court’s

entry

of

summary

judgment

in

favor

of

Defendants-Appellees Leather Industries of America (“LIA”) and
Ashley

Furniture

Industries,

Inc.

(“Ashley”),

on

DRI’s

false

advertising claim under the Lanham Act, 15 U.S.C. § 1125(a).
DRI alleged that an advertisement placed in a trade magazine by
Ashley

(the

“Ashley

Ad”),

as

well

as

two

statements

by

Dr.

Nicholas Cory, director of LIA’s research laboratory, which ran
in articles in the same publication, were false and misleading.
The district court granted summary judgment to LIA and Ashley,
concluding that DRI had not presented sufficient evidence to
establish a Lanham Act claim.

For the reasons that follow, we

affirm.

I.
A.
Appellee Ashley is the fifth largest furniture manufacturer
in the United States.

J.A. 116.

In addition to manufacturing

furniture, Ashley operates and licenses retail locations that
bear its name, and it sells its furniture to other retailers,
such as Costco and Walmart.
leather

industry

trade

J.A. 986-88.

association,

2

which

Appellee LIA is a
owns

the

Leather

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Research Laboratory (the “Laboratory”). 1

Dr. Nicholas Cory is a

leather chemist and the director of the Laboratory.

He and his

lab provide labeling advice to companies who market leather and
leather-look products, as well as testing services to determine
such

products’

leather

content

for

purposes

of

federally

mandated disclosure to consumers.
Appellant DRI develops furniture coverings and sells its
products

to

furniture

manufacturers.

In

late

2006,

DRI

developed a “synthetic leather-look furniture covering product,
which

it

initially

“NextLeather®.”
“composed

of

leather.”

Id.

called

‘Veneto’”

Appellant’s
61%

Br.

polyurethane,

and

at
22%

8.

later

renamed

as

NextLeather®

is

poly/cotton,

and

17%

“[I]t has a polyurethane face on a fabric core

and is backed with a thin layer of leather fibers adhered (i.e.,
bonded) to its base or underside.”

Id.

The use of leather

fibers as backing, as opposed to “single-piece leather ‘splits’
. . . , represented an improvement in the ability of a leatherlook product to mimic real leather . . .

because it made the

material more pliable and allowed it to drape more fluidly over
1

There was a factual dispute below concerning LIA’s
ownership of the Laboratory.
The district court did “not find
that factual dispute material” to its decision and therefore
“reache[d] its legal conclusion without resolving [the] issue.”
J.A. 1760 n.2. Because we affirm the district court’s grant of
summary judgment to LIA, this factual question is not relevant
to our analysis either, and therefore need not detain us.

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a furniture frame.”

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Appellant’s Br. at 8.

In December 2006 and January 2007, DRI requested labeling
advice and composition testing of its NextLeather® product from
Dr. Cory at LIA’s laboratory.

Dr. Cory advised that the product

could “ABSOLUTELY NOT!” be characterized or marketed as leather.
J.A. 261.

He cited the Federal Trade Commission’s Guides for

Select Leather and Imitation Leather Products (“FTC Guides”),
which

specify

that

products

containing

ground

or

shredded

leather, rather than comprising “wholly the hide of an animal[,]
should not be represented, directly or by implication, as being
leather.”

J.A. 261 (quoting 16 C.F.R. § 24.2(f) 2).

Instead, Dr.

Cory suggested, DRI could label NextLeather® as “[n]ot leather,”
“[r]econstituted leather,” or “[b]onded leather.”

J.A. 261.

In early 2007, DRI began marketing NextLeather® as “bonded
leather,” disclosing the product’s composition on a label in
compliance

with

the

FTC

Guides.

DRI

viewed

its

product

as

innovative and believed that “NextLeather® was the first and
only such product marketed as ‘bonded leather.’”
In

preparation

for

the

Spring

2

High

Point

J.A. 1289-90.

Market

in

North

Dr. Cory referred to the FTC Guides in place in 2006,
which remained in effect throughout the underlying litigation.
In 2007, the FTC sought public comment on whether to revise the
Guides, 72 Fed. Reg. 28,906, 28,907 (May 23, 2007) (to be
codified at 16 C.F.R. pt. 24), but in 2008, decided to retain
them unchanged, 73 Fed. Reg. 34,626, 34,630 (June 18, 2008) (to
be codified at 16 C.F.R. pt. 24).

4

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Carolina--an
sold

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important,

samples

of

manufacturers.

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annual

furniture

NextLeather®

to

industry

event--DRI

leading

furniture

25

Those manufacturers would then debut furniture

products made with NextLeather® at the Spring High Point Market,
from March 26 to April 1, 2007.
In the weeks leading up to and following the Spring High
Point

Market,

Ashley

placed

a

series

of

full-page

in Furniture Today, a widely read trade magazine.

ads

According to

DRI, one of the ads--which ran in the March 12, March 31, and
April 30, 2007 issues--contained false statements about DRI and
NextLeather®.
follows:

In relevant part, the text of the ad read as

“Is It REALLY LEATHER? . . . Some upholstery suppliers

are using leather scraps that are mis-represented as leather
. . . .

Know

What

You

Are

Buying[.]

REMEMBER

.

.

Overseas Manufacturer Has NO Liability In The U.S.A.

.

The

You Do!”

J.A. 274, 281, 283 (third ellipsis in original).
On

July

2,

2007,

Furniture

Today

published

an

article

written by Joan Gunin and entitled, “Chemist fears confusion
over imitators may hurt category.”

J.A. 86.

This article (the

“Gunin Article”) quoted Dr. Cory as saying the following:

“To

call [leather alternatives such as bonded leather] ‘leather’ is
outright

deception,

outright

fraud.

.

.

.

It’s

not

leather. . . . It’s a synthetic that has leather fibers glued to
the underside.”

J.A. 86 (second ellipsis in original).
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A week later, on July 9, 2007, Furniture Today published an
article written by Susan Andrews and entitled, “For consumers’
sake, let’s not call it ‘bonded leather.’”

J.A. 108.

article

(the

“[n]ew

fabrics

now

“Andrews
called

Article”)

‘bonded

referred

leather,’”

to

which

“have

This

composite
a

surface

layer of vinyl or polyurethane, a center layer of fabric, and a
backing that contains some leather fibers . . . glued onto the
fabric for a look that is similar to the back of a leather
hide.”

J.A. 108.

The article’s author advocated against using

the term “bonded leather” to refer to these products by arguing
that the term is “bound to confuse consumers, who are likely to
hear only the word ‘leather.’”

J.A. 108.

The article then

quoted Dr. Cory as saying that calling these products bonded
leather “is deceptive because it does not represent its true
nature.

It’s

composite,

but

a

vinyl,

it’s

not

or

a

polyurethane

leather.

If

someone, does that make them a chicken?”

you

laminate
tar

and

or

a

feather

J.A. 108.

B.
In February 2010, DRI filed suit against Ashley, Todd Wanek
(Ashley’s president and CEO), LIA, and Dr. Cory.
false

advertising

claims

under

the

Lanham

Act,

It asserted
15

U.S.C.

§ 1125(a), as well as various violations of North Carolina and

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Washington law. 3

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In September 2012, the district court granted

Wanek’s and Dr. Cory’s motions to dismiss for lack of personal
jurisdiction.

J.A. 161.

While these two individuals are listed

as Appellees in this case, DRI does not seek review of the
district court’s September 2012 order.

See Appellant’s Br. at

26.
DRI made the following arguments before the district court.
Regarding

the

Ashley

Ad’s

statement--that

“[s]ome

upholstery

suppliers are using leather scraps that are mis-represented as
leather”--DRI
Ashley

Ad

asserted

knew

that

that
the

ad

“[a]ll
was

informed
“referring

readers”
to

DRI

of

the

and

its

NextLeather® bonded leather” because DRI was the only company
selling the kind of product described.

J.A. 47.

It argued that

the ad was false because DRI was not marketing its product as
leather, but rather as “bonded leather.”

J.A. 47.

With respect to the Gunin Article, DRI characterized the
statement by the LIA Laboratory director, Dr. Cory--that calling
bonded leather “leather” is deceptive--as “explicitly accus[ing]

3

Specifically, DRI alleged violations of the North Carolina
Unfair and Deceptive Trade Practices Act and the Washington
Consumer Protection Act, as well as several claims under both
North Carolina and Washington law: tortious interference with
business relations, civil conspiracy, negligence and fraudulent
concealment, negligent misrepresentation, breach of contract,
breach of the duty of good faith and fair dealing, and punitive
damages. J.A. 55-63.

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DRI of . . . selling a counterfeit product.”
maintained

that

“there

could

be

no

doubt”

J.A. 50.

that

“Dr.

DRI

Cory’s

defamatory statements were referring to DRI and NextLeather®,”
J.A.

50,

and

that

the

statement

was

false

because

DRI

was

selling NextLeather® as bonded leather, rather than as leather.
DRI also contended that Dr. Cory’s statement in the Andrews
Article--that the term “bonded leather” is deceptive as applied
to some products--was false because the FTC Guides allowed, and
Dr.

Cory

had

advised,

DRI

to

label

the

product

as

“bonded

leather.”
Finally, DRI argued that the defendants’ statements damaged
DRI’s “actual and potential customer relationships.”

J.A. 55.

It pointed to a decline in sales of NextLeather® to furniture
manufacturers following publication of the ad and articles, and
it asserted that it was “forced to spend substantial sums to
address [the] resulting damage.”

J.A. 55.

DRI moved for partial summary judgment, and Ashley and LIA
cross-moved for summary judgment.

The district court granted

Ashley’s and LIA’s motions for summary judgment in August 2014.
Relevant here, the district court determined that DRI failed to
present sufficient evidence to establish that the Ashley Ad, the
Gunin Article, or the Andrews Article were false or misleading. 4

4

The district
(continued)

court

also
8

rejected

DRI’s

arguments

in

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Regarding the Ashley Ad, the district court held that DRI
failed to establish that the ad was false on either of the
grounds DRI presented.

As an initial matter, DRI failed to show

that the contested statement--that “[s]ome upholstery suppliers
are using leather scraps that are mis-represented as leather”-conveyed

the

leather.

message

that

See J.A. 1779–84.

DRI

was

selling

NextLeather®

as

The court reasoned that “a reader

of Ashley’s ad would have had to make at least two sizeable
inferences” in order to glean this message from the ad.
1780.

J.A.

Because the ad does not use the term “bonded leather,”

“the reader would first have to ascertain that the ad references
bonded leather, as opposed to . . . any other similarly produced
products.”

J.A. 1780-81.

Second, the reader would “have to

infer that the ad was referring solely to DRI’s NextLeather®.”
J.A. 1782.
of

DRI also failed to establish its alternative theory

liability

with

respect

to

the

ad--that

the

ad

was

false

because it misled consumers--because it did not show that “a
single consumer was misled” by the ad.

J.A. 1784.

Turning to the Gunin and Andrews Articles, the court held
that neither article contained a false statement of fact.

As to

Dr. Cory’s statement in the Gunin Article--that referring to

support of its state law claims, granting summary judgment to
the defendants on all of them. See J.A. 1792-1807.

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bonded leather as “leather” would be “outright fraud”—-the court
pointed out that this statement was true because bonded leather
contains only scraps or shavings of leather, rather than whole
hide.
in

Additionally, DRI offered no “evidence linking the quote

the

Gunin

article

with

a

single

customer’s

refusal

to

purchase NextLeather® or general customer confusion about Dr.
Cory’s statements.”

J.A. 1774.

As for the Andrews Article, the

court held that Dr. Cory--in stating that using the term “bonded
leather”

is

“deceptive”--was

“giving

his

opinion

on

how

a

customer would perceive the term bonded leather” because he “did
not claim to know the law, did not reference the law, and did
not

maintain

liability.”

that

using

J.A. 1777.

such

term

would

result

in

legal

DRI timely appealed.

II.
We review de novo the district court’s grant of summary
judgment,
inferences

“viewing

the

therefrom

nonmoving party.

facts

in

the

and
light

drawing
most

all

reasonable

favorable

to”

the

PBM Products, LLC v. Mead Johnson & Co., 639

F.3d 111, 119 (4th Cir. 2011).

Summary judgment is proper only

if there is no genuine issue of material fact and the moving
party is entitled to judgment as a matter of law.
P.

56(a).

“[I]t

is

ultimately

burden

to

persuade us that there is indeed a dispute of material fact.

It

10

the

Fed. R. Civ.

nonmovant’s

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must provide more than a scintilla of evidence--and not merely
conclusory allegations or speculation--upon which a jury could
properly find in its favor.”

CoreTel Va., LLC v. Verizon Va.,

LLC, 752 F.3d 364, 370 (4th Cir. 2014) (citation omitted).

III.
On
granting

appeal,
summary

DRI

argues

judgment

that
to

the

district

Ashley

and

court

LIA

erred

because

in

DRI’s

evidence with respect to the Ashley Ad, the Gunin Article, and
the

Andrews

Article

was

sufficient

to

establish

false

advertising claims under the Lanham Act, 15 U.S.C. § 1125(a). 5
In the discussion that follows, we begin with a brief overview
of the governing legal framework, and then consider each of the
purportedly false statements in turn.
A.
A plaintiff asserting a false advertising claim under the
Lanham Act must establish that:
(1)
the
defendant
made
a
false
or
misleading
description of fact or representation of fact in a
commercial advertisement about his own or another’s
product; (2) the misrepresentation is material, in
that it is likely to influence the purchasing
5

DRI also argues on appeal that the district court erred in
granting summary judgment to Ashley and LIA on its claim under
the North Carolina Unfair and Deceptive Trade Practices Act. We
have considered DRI’s arguments with respect to this claim and
find them to be without merit.

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decision; (3) the misrepresentation actually deceives
or has the tendency to deceive a substantial segment
of its audience; (4) the defendant placed the false or
misleading statement in interstate commerce; and (5)
the plaintiff has been or is likely to be injured as a
result of the misrepresentation, either by direct
diversion of sales or by a lessening of goodwill
associated with its products.
PBM Products, 639 F.3d at 120 (emphasis added) (quoting Scotts
Co. v. United Indus. Corp., 315 F.3d 264, 272 (4th Cir. 2002)).
Because the plaintiff must establish all five elements of the
claim, failure to establish any one element is fatal to the
claim.

The parties here focus their arguments on the first

element--whether
assertions

of

the
fact.

defendants
Because

made
we

find

false

or

that

DRI

misleading
failed

to

substantiate this element with respect to any of the contested
statements, we limit our analysis accordingly.
For

false

advertising

liability

to

arise,

the

contested

statement must be false, and it must be a representation of
fact.

Regarding falsity, the statement “must be either false on

its face or, although literally true, likely to mislead and to
confuse
(quoting

consumers
C.B.

given

Fleet

Co.

the

merchandising

v.

SmithKline

context.”
Beecham

Healthcare, L.P., 131 F.3d 430, 434 (4th Cir. 1997)).

Id.

Consumer
Thus, the

plaintiff can show falsity in either of these two ways.

First,

a statement that is false on its face--or literally false--“may
be either explicit or conveyed by necessary implication when,

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considering
would

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the

advertisement

recognize

the

explicitly stated.”

claim

Pg: 13 of 23

in

as

its

entirety,

readily

as

if

the
it

audience
had

Id. (quoting Scotts, 315 F.3d at 274).

been
“In

analyzing whether an advertisement . . . is literally false,”
courts must “determine, first, the unambiguous claims made by
the advertisement . . . , and second, whether those claims are
false.”

Scotts,

315

F.3d

at

274

(quoting

Novartis

Consumer

Health, Inc. v. Johnson & Johnson-Merck Consumer Pharm. Co., 290
F.3d 578, 586 (3d Cir. 2002)).
Second, the plaintiff can show that, although a statement
may be true on its face and not false by necessary implication-it is otherwise false by implication because it would likely
mislead consumers of the product the statement concerns.
plaintiff

must

support

a

theory

of

implied

falsehood

The
with

evidence that the advertisement “tend[s] to mislead or confuse
[such] consumers.”

Id. at 273 (quoting Johnson & Johnson Merck

Consumer Pharm. Co. v. Smithkline Beecham Corp., 960 F.2d 294,
297 (2d Cir. 1992)) (internal quotation mark omitted).
evidence

of

consumer

confusion

must

“account

for

the

Such
.

.

.

allegations in the case”--or, show that the statement misled
consumers in the way the plaintiff claims it did; otherwise, it
“fail[s]

to

provide

the

required

falsity.”

PBM Products, 639 F.3d at 122.

13

evidence

of

[implied]

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In

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addition

to

being

Pg: 14 of 23

false,

the

statement

must

be

a

representation of fact, or, a “specific and measurable claim,
capable of being proved false or of being reasonably interpreted
as a statement of objective fact.”
John’s

Int’l,

Inc.,

227

F.3d

Pizza Hut, Inc. v. Papa

489,

496

(5th

Cir.

2000)

(quoting Coastal Abstract Serv., Inc. v. First Am. Title Ins.
Co.,

173

F.3d

marks omitted).
[are]

not

725,

731

(9th

Cir.

1999))

(internal

quotation

By contrast, statements “of general opinion

actionable

under

[§

Id.

1125].”

To

be

a

representation of fact, the statement must “admit[] of being
adjudged true or false in a way that . . . admits of empirical
verification.”

Id. (quoting Presidio Enters. v. Warner Bros.

Distrib. Corp., 784 F.2d 674, 679 (5th Cir. 1986)) (internal
quotation

mark

omitted).

With

this

framework

in

mind,

we

failed

to

discuss each purportedly false advertisement in turn.
B.
1.
We

agree

substantiate

a

with
claim

the
that

district
the

court

Ashley

that

Ad

DRI

is

either

literally

false or impliedly false.

Beginning with literal falsity, DRI

argues

on

upholstery

appeal

that

the

ad’s

suppliers

are

using

statement--that

leather

scraps

that

“[s]ome
are

mis-

represented as leather,” e.g., J.A. 274--was literally false by
necessary

implication.

It

argues
14

that

“[s]ome

upholstery

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suppliers” refers to suppliers of bonded leather generally and
to

DRI--as

supplying

NextLeather®--specifically,

and

that

the

ad’s audience would have recognized these references “as readily
as if [they] had been explicitly stated.”

PBM Products, 639

F.3d at 120 (quoting Scotts, 315 F.3d at 274).
DRI

argues

that

the

ad’s

unmistakable

when

viewed

in

reference
the

to

broader

consumers would have understood it.

In particular,
NextLeather®

context

in

is

which

DRI then contends that,

having necessarily implied a reference to bonded leather and
DRI’s NextLeather®, the ad communicates the false messages that
bonded leather was being marketed as leather and that DRI was
marketing NextLeather® as leather.
We find DRI’s literal falsity argument confounding.

At

bottom, DRI asserts that, even though the ad refers only to
products
products

marketed
not

NextLeather®.

as

marketed

leather,
as

it

leather,

unmistakably
but

as

bonded

refers

to

leather

or

In order to arrive at this conclusion, one has to

follow DRI’s winding inquiry far outside the face of the ad,
which the concept of literal falsity by necessary implication
does not allow us to do.
that

the

ad

means

the

And, one has to be willing to accept
opposite

of

what

it

says,

an

interpretation we find insupportable.
In evaluating claims asserting literal falsity by necessary
implication, courts have emphasized the limits of this theory of
15

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liability,

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holding

advertisement
falsity.”

that

will

not

Pg: 16 of 23

“all

support

messages

a

implied

finding

of

by

an

literal

Clorox Co. P.R. v. Proctor & Gamble Commercial Co.,

228 F.3d 24, 35 (1st Cir. 2000).

“The greater the degree to

which a message relies upon the viewer or consumer to integrate
its components and draw the apparent conclusion, . . . the less
likely

it

is

supported.”

that

a

finding

of

literal

falsity

will

be

Id. (quoting United Indus. Corp. v. Clorox Co., 140

F.3d 1175, 1181 (8th Cir. 1998)).

And “[c]ommercial claims that

are implicit, attenuated, or merely suggestive usually cannot
fairly be characterized as literally false.”

Id.

In other

words, a false advertising claim cannot rely on the consumer to
draw inferences that an ad only hints at or merely suggests.
A

false

advertising

claim

can,

however,

depend

on

the

consumer to draw conclusions that are logically necessary from
an ad’s statements.

In Castrol Inc. v. Pennzoil Co., a Pennzoil

advertisement made two claims--first, that motor oil viscosity
breakdown leads to engine failure, and second, that Pennzoil’s
product

“outperforms

breakdown.”
advertisement

any

leading

motor

oil

against

987 F.2d 939, 947 (3rd Cir. 1993).
did

not

“specifically

mention

its

viscosity
Though the

competitors,”

the court determined that the advertisement “left the consumer
with the obvious conclusion that Pennzoil is superior to the
other leading brands in protection against engine problems,” and
16

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thus “Pennzoil did, by implication, compare its effectiveness
against engine wear to that of its competitors.”
Put

differently,

implication

a

claim

could

of

stand

literal

where

falsity

the

Id. at 946.
by

contested

necessary
conclusion

necessarily flowed from the ad’s statements.
Although DRI acknowledges that the Ashley Ad “d[id] not
specifically use the words ‘bonded leather,’” it argues that the
ad nevertheless necessarily implied a false message regarding
bonded

leather

and

NextLeather®

because

“it

is

indisputable

. . . that the market understood [the Ashley Ad as targeting
bonded

leather].”

consumers
broader

would
market

Appellant’s
have

Br.

understood

context

of

the

at

this

31.

DRI

implication

Ashley

Ad,

evidence

in

support:

(1)

another

article,

published

on

March

2007--between

the

to

Furniture
the

that

given

pointing

following

30,

urges

the
Today

first

and

second publications of the Ashley Ad--noting that “Ashley is
urging buyers to ‘be aware’ of bonded leather,” Appellant’s Br.
at

31;

J.A.

1678;

(2)

a

survey

by

Ashley’s

expert

witness

showing that viewers of the ad understood it to refer to bonded
leather,

Appellant’s

Br.

at

32;

(3)

email

exchanges

between

Ashley and Dr. Cory suggesting that Ashley sought to disparage
bonded leather, id. at 32; J.A. 321, 332; and (4) testimony by
DRI’s owner and president and by a furniture manufacturer to the
effect that “DRI was the only company offering a product like
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NextLeather® and marketing it as ‘bonded leather,’” Appellant’s
Br. at 32; see also J.A. 1289-90; 1496-1500.
In

making

this

argument,

DRI

asks

us

to

reach

entirely

outside the face of the ad and into the context surrounding the
ad’s

publication

to

necessarily implied.

uncover

a

false

message

it

argues

is

Far from making the argument that the ad’s

statements logically require the conclusion that the ad concerns
bonded leather, DRI, or NextLeather®, DRI instead relies on the
consumer to scrape together that conclusion from reading other
articles from the publication and having knowledge that only DRI
was marketing a product like the one described in the ad.

This

expectation is made all the more unreasonable given the fact
that the Ashley Ad mentions neither DRI nor its NextLeather®
product, and instead, directly refers to a category that would
exclude bonded leather and NextLeather®--products marketed with
the unqualified term “leather.”

Thus, DRI stretches the concept

of literal falsity beyond its bounds in urging us to conclude
that the ad means the opposite of what it says.

In so doing,

DRI fails to establish that the Ashley Ad is literally false.
Turning to implied falsity, DRI argues that, even if the
Ashley Ad is not false on its face or by necessary implication,
it is otherwise false by implication because it misled consumers
about its NextLeather® product.

For support, DRI again points

to the survey conducted by Ashley’s expert witness, maintaining
18

Appeal: 14-1990

that

Doc: 48

it

bonded

shows

Filed: 06/18/2015

that

leather,

NextLeather®.”
But

to

consumers

which,

Pg: 19 of 23

understood

“at

the

time

the
was

ad

to

be

about

synonymous

with

Appellant’s Br. at 40.
“provide

the

required

evidence

of

[implied]

falsity”--that the contested statement confused consumers--the
proffered evidence must “account for the . . . allegations in
the case,” PBM Products, 639 F.3d at 122--here, that the Ashley
Ad confused consumers about NextLeather®.
this required showing.
NextLeather®.

DRI fails to make

The survey made no mention of DRI or

Rather, it asked consumers who had attended the

Spring High Point Market between 2004 and 2013 what message they
thought the ad conveyed and to which specific suppliers they
thought the ad referred.

The survey results showed that “zero

respondents gave an answer that could be interpreted as a belief
that DRI or NextLeather were specifically mentioned as[,] . . .
[or]

implied

or

suggested

to

be[,]

the

upholstery material described” in the ad.
because

DRI’s

claim

depends

on

consumer

supplier
J.A. 424.
confusion

of

the
Thus,
about

NextLeather®, and the survey on which DRI relies demonstrates no
confusion about DRI or its product, DRI fails to substantiate a
theory of implied falsity in the Ashley Ad.
2.
We also agree with the district court that DRI failed to
provide sufficient support for a false advertising claim with
19

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respect

to

Filed: 06/18/2015

Dr.

Cory’s

Pg: 20 of 23

statement

in

the

Gunin

Article.

DRI

argues that Dr. Cory’s statement--that “[t]o call [alternative
leather products such as bonded leather] ‘leather’ is outright
deception,

outright

fraud,”

necessary implication.

J.A.

86--is

literally

false

by

DRI contends that the statement must be

understood as “referring specifically to NextLeather®” because,
in the same article, Dr. Cory described the characteristics of
bonded leather, and that description “applies to NextLeather®.”
Appellant’s Br. at 45.

Thus, DRI maintains, “any reasonable

juror would conclude that [Dr.] Cory was calling DRI’s use of
the

term

‘bonded

fraudulent.’”

leather’--not

‘leather’--‘deceptive

and

Id.

However, the statement that calling bonded leather products
“leather”

is

deceptive

unambiguously

communicates

the

message

that using the unqualified term “leather” for products that are
not

leather

is

misleading.

Nothing

on

the

face

of

this

statement suggests that the use of the term “bonded leather”--by
DRI or anyone else--is misleading.
its

NextLeather®

product

is

not

And DRI acknowledges that
leather

as

that

term

is

understood in the furniture upholstery industry, but is instead
a

“synthetic

leather-look

furniture

covering

product.”

Appellant’s Br. at 8.

Therefore, we agree with the district

court

statement

that

Dr.

Cory’s

cannot

qualify

as

false

or

misleading because it is true, and accordingly conclude that DRI
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has failed to support its false advertising claim with respect
to the Gunin Article.
3.
Finally, we agree with the district court that DRI failed
to provide sufficient evidence to demonstrate that Dr. Cory’s
statement

in

representation

the
of

Andrews
fact.

Article
As

was

a

false

discussed

above,

or

misleading

this

article

advocated against use of the term “bonded leather” as “bound to
confuse consumers,” and it quoted Dr. Cory as saying that the
term

“is

deceptive

because

it

does

not

represent

nature” of the products it is used to describe.

[the]

true

J.A. 108.

Instead, such products are more accurately described as “vinyl,”
“polyurethane laminate,” or “composite,” rather than with a term
that includes the word “leather.”

J.A. 108.

The district court concluded that this statement expressed
an opinion “on how a customer would perceive the term bonded
leather.”

J.A. 1777.

DRI argues that, even if Dr. Cory’s

statement conveys an opinion, it is still actionable under the
reasoning of Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990).
In that case, the Supreme Court held that opinion statements are
not automatically protected against defamation claims because,
for example, the statement, “‘In my opinion Jones is a liar,’ .
. . implies a knowledge of facts which lead to the conclusion
that Jones told an untruth.”

Id. at 18.
21

The Court reasoned

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that “[i]t would be destructive of the law of libel if a writer
could escape liability for accusations of [defamatory conduct]
simply

by

think.’”

using,

explicitly

or

implicitly,

the

words

‘I

Id. at 19 (quoting Cianci v. N.Y. Times Pub. Co., 639

F.2d 54, 64 (2d Cir. 1980)).
If we were to extrapolate the Milkovich rule to the Lanham
Act context, we could draw from it that statements of opinion
may not automatically be protected from false advertising claims
if

they

“imply

a

knowledge

of

facts

conclusion” that the statement were true.

which

lead

Id. at 18.

to

the

By this

reasoning, DRI’s argument is unpersuasive, however, because Dr.
Cory’s statement does not imply a basis in facts leading to the
conclusion that consumers are or have been deceived by the term
“bonded leather.”

It communicates only the hypothesis--yet to

be proved or disproved--that “bonded leather” has the potential
to confuse consumers.
More
defamation

pertinent
rule

are

to

our

analysis

decisions

than

rendered

in

the
the

Milkovich
Lanham

Act

context, which, as discussed above, have held that statements
“of general opinion [are] not actionable under [§ 1125].”
Hut, 227 F.3d at 496.

Pizza

Rather, an actionable statement must

“admit of being adjudged true or false in a way that . . .
admits of empirical verification.”
statement

not

“admit[ting]

of
22

Id.

An example of a type of

empirical

verification”

that

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courts have recognized is “[a] prediction, or statement about
the future, [which] is essentially an expression of opinion”
that is not actionable.

Presidio, 784 F.2d at 680; see also id.

at 678-79.
In the context of an article suggesting that a marketing
term is “bound to confuse” consumers, stating that the term is
“deceptive”
Unlike

is

stating

consumers,

merely
that
which

putting
the

that
“has

been

shown

“admit[]

term

point

of

might

a

different
to

way.

deceive”
empirical

verification,” Pizza Hut, 227 F.3d 496, merely calling a term
“deceptive” suggests only that it is the speaker’s view that the
term has the potential to deceive.

In other words, a prediction

about a term’s power to deceive expresses only an opinion about
the

term’s

representation

likely
of

effect

fact--false

on
or

actionable under the Lanham Act.
680; Pizza Hut, 227 F.3d 496.

consumers;

it

otherwise--and

is
is

not
thus

a
not

See Presidio, 784 F.2d at

Therefore, DRI has also failed to

substantiate its claim as to Dr. Cory’s statement in the Andrews
Article.

IV.
For the foregoing reasons, the judgment of the district
court is
AFFIRMED.
23