Euro-Pro Operating LLC v. Dyson Inc.
Filing
396
Judge Allison D. Burroughs: ORDER entered For the reasons set forth in the accompanying Memorandum and Order, SharkNinja's Motion for Summary Judgment [ECF No. 171] is ALLOWED with regard to the issue of Dyson's liability on Count I of the Amended Complaint. SharkNinjas Motion is otherwise DENIED. Dysons Motion for Summary Judgment [ECF No. 169] is also DENIED. (Montes, Mariliz)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
SHARKNINJA OPERATING LLC,
Plaintiff,
v.
DYSON INC. and DYSON LTD.,
Defendants.
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No: 14-cv-13720-ADB
ORDER ON MOTIONS FOR SUMMARY JUDGMENT
BURROUGHS, D.J.
The parties, SharkNinja Operating LLC (“SharkNinja”), and Dyson Inc. and Dyson LTD
(together, “Dyson”), are competitors in the household vacuum market. In this action, each
accuses the other of disseminating false and misleading advertising about their respective
vacuum products, in violation of the federal Lanham Act, 15 U.S.C. § 1125(a), and
Massachusetts state law.
In 2013, Dyson launched an advertising campaign claiming that certain of its vacuums
had “twice the suction of any other vacuum” on the market. In July 2014, however, SharkNinja
released a vacuum called the Shark Powered Lift-Away (the “Shark Lift-Away”). SharkNinja
claims that Dyson’s “twice the suction” advertising claims became literally false no later than
July 2014, when the Shark Lift-Away was introduced, because Dyson vacuums did not, in fact,
have “twice the suction” of the Shark Lift-Away. In its First Amended Complaint, [ECF No. 40]
(“Compl.”), SharkNinja asserts claims for false advertising in violation of the Lanham Act, 15
U.S.C. § 1125(a)(1)(B) (Count I); deceptive trade practices in violation of Mass. Gen. Laws, ch.
93A (Count II); and false advertising in violation of Mass. Gen. Laws, ch. 266, § 91 (Count III).
1
Dyson filed counterclaims [ECF No. 59] for false advertising in violation of the Lanham
Act (Count I), and violations of Mass. Gen. Laws, ch. 93A (Count II), which arise out of
SharkNinja’s advertising campaign for its Shark Rocket upright stick vacuum (the “Shark
Rocket”). Specifically, the packaging for the Shark Rocket claimed that the product “deep cleans
carpets better vs. a Full Size Dyson.” Dyson, however, alleges that the Shark Rocket does not
clean carpets better than every full-sized Dyson vacuum, and that SharkNinja’s advertising
claims are therefore false and misleading.
Before the Court are the parties’ cross-motions for summary judgment. For the reasons
set forth in this Memorandum and Order, SharkNinja’s Motion for Summary Judgment [ECF
No. 171] is ALLOWED IN PART and DENIED IN PART. Dyson’s Motion for Summary
Judgment [ECF No. 169] is DENIED.
I.
FACTS 1
A. Dyson’s campaign: “Twice the Suction”
In July 2013, Dyson launched its “twice the suction” (“TTS”) advertising claims in
connection with its DC41 vacuum cleaner. Dyson’s advertisements, which appeared in print,
television, and internet advertising, as well as on point of purchase displays in some retail
locations, and on packaging for the DC41, claimed that the DC41 had “twice the suction of any
other vacuum.” Subsequently, Dyson also included the TTS claim on advertisements for its
DC65 vacuum, which became available in a limited release in January 2014, and nationwide in
March 2014.
1
These facts are drawn from the following documents: SharkNinja’s Statement of Undisputed
Material Facts [ECF Nos. 177, 182]; Dyson’s Response thereto [ECF No. 214]; Dyson’s
Statement of Undisputed Material Facts [ECF Nos. 172, 188]; SharkNinja’s Response thereto
[ECF Nos. 199, 206]; Shark Ninja’s Sur-Reply [ECF No. 221]; and Dyson’s Sur-Reply [ECF
No. 224]. As the Court is resolving cross-motions for summary judgment, any factual disputes
are construed in favor of the relevant non-moving party.
2
On May 7, 2014, counsel for SharkNinja sent a letter to in-house counsel at Dyson,
advising him that in July 2014, SharkNinja intended to launch a new vacuum, and that the
performance capabilities of this new vacuum would render Dyson’s TTS claim literally false.
According to SharkNinja’s counsel, testing on the new Shark vacuum proved that the DC65 no
longer had “twice the suction of any other vacuum.” SharkNinja’s letter, however, did not
enclose any test results. The letter further stated that upon launch of the new Shark vacuum,
SharkNinja expected Dyson to remove its TTS advertising claim from the market.
SharkNinja began selling its new vacuum, the Shark Lift-Away, on July 8, 2014. On July
9, 2014, SharkNinja’s general counsel sent another letter to Dyson’s general counsel, informing
him that the Shark Lift-Away was officially on the market, and that testing demonstrated that
Dyson’s TTS claim was literally false. Again, however, SharkNinja did not enclose any test
results with its letter, nor did it provide Dyson with a sample Lift-Away vacuum product for
testing purposes.
Shortly after the launch, Dyson purchased three Shark Lift-Away units directly from
SharkNinja’s website. Those vacuums were delivered to Dyson’s U.S. offices on July 22, 2014,
and were subsequently sent to Dyson’s U.K. office for internal testing. Dyson completed its
internal testing in early August, 2014. Dyson also purchased additional Lift-Away vacuums,
which it sent to a third-party testing facility. Dyson received the results of those third-party tests
in early September, 2014. In addition, SharkNinja provided Dyson with its own third-party test
results on September 10, 2014, which purportedly showed that the DC65 and the DC41 did not
have “twice the suction” of the Shark Lift Away. Thus, no later than early September, 2014,
Dyson had received both internal and third-party test results confirming that the Shark Lift-Away
had more than half the suction of the DC65 and the DC41. Dyson now concedes, as a factual
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matter, that the launch of the Shark Lift-Away rendered its TTS claim literally false as of July 8,
2014.
The parties dispute what happened over the next several months. Dyson argues that once
it realized the TTS claim had become “stale,” it took prompt, commercially reasonable steps to
remove that advertising claim from the marketplace. SharkNinja, in contrast, contends that
Dyson dragged its feet. For example, Dyson did not begin “stickering over” the TTS claim on
product packaging in stores until November 17, 2014. SharkNinja argues that as a result of
Dyson’s dilatory response, the false TTS claim remained on the market until early 2015, and that
it hindered sales and market growth of SharkNinja’s Lift-Away vacuum. 2
B. SharkNinja’s campaign: “Cleans Carpets Better vs. a Full Size Dyson”
On September 9, 2013, SharkNinja launched an upright stick vacuum known as the
“Rocket,” which SharkNinja marketed as a light-weight alternative to full-size upright vacuums.
SharkNinja sells the Rocket in a variety of ways, including through television infomercials, via
website sales, and in retail stores.
For some period of time, the product packaging box for the Rocket vacuum contained a
promotional statement claiming that the Rocket “deep cleans carpets better vs. a full size
Dyson*”. The asterix corresponds to a qualifying footnote, which stated “*Based on the Dyson
DC40 ASTM F608 (imbedded dirt removal on carpet).” Although the “cleans carpets better vs. a
full size Dyson*” claim appeared on five out of the six box panels for the Rocket vacuum, the
footnote appeared only on one side panel, at the very bottom, in tiny print. 3
2
Based on the current record, the Court is not able to determine the date by which the TTS claim
was entirely removed from the marketplace.
3
It also appears that SharkNinja may have made similar comparison claims in TV infomercials.
SharkNinja, however, has objected to the Court considering this evidence on summary judgment,
on the grounds that the infomercials have not been properly authenticated under Fed. R. Civ. P.
4
Dyson argues that the disclaimer is too small and discreetly placed for consumers to take
notice of it, and that as a result, SharkNinja’s claim that the Rocket “deep cleans carpets better
vs. a full size Dyson*” necessarily communicates to consumers that the Rocket outperforms
every full-sized Dyson upright vacuum, and not just the DC40. Dyson further alleges that this
claim is demonstrably false, because the Rocket did not clean carpets better than all Dyson
upright vacuums – specifically, the DC65 and the Dyson Ball Multi-Floor performed better than
the Rocket.
II.
LEGAL STANDARD
A. False advertising under the Lanham Act
To prove a false advertising claim under Section 43(a) of the Lanham Act, 15 U.S.C. §
1125(a), a plaintiff must demonstrate 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 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.
Cashmere & Camel Hair Mfrs. Inst. v. Saks Fifth Ave., 284 F.3d 302, 310-11 (1st Cir. 2002)
(citing Clorox Co. P.R. v. Proctor & Gamble Commercial Co., 228 F.3d 24, 33 n.6 (1st Cir.
2000)); see also 15 U.S.C. § 1125(a).
56(e). Accordingly, the Court will not consider the infomercials for purposes of SharkNinja’s
summary judgment motion and will limit its discussion to the claims made on the Rocket product
packaging.
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B. Summary judgment standard
Summary judgment is appropriate where the moving party can show that “there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). “[A]n issue is ‘genuine’ if it ‘may reasonably be resolved in favor of
either party.’” Robinson v. Cook, 863 F. Supp. 2d 49, 60 (D. Mass. 2012) (quoting Vineberg v.
Bissonnette, 548 F.3d 50, 56 (1st Cir. 2008)). “A fact is material if its resolution might affect the
outcome of the case under the controlling law.” Cochran v. Quest Software, Inc., 328 F.3d 1, 6
(1st Cir. 2003) (citation omitted). Thus, “[a] genuine issue exists as to such a fact if there is
evidence from which a reasonable trier could decide the fact either way.” Id. (citation omitted).
By invoking summary judgment, “the moving party in effect declares that the evidence is
insufficient to support the nonmoving party’s case.” United States v. One Parcel of Real Prop.
(Great Harbor Neck, New Shoreham, R.I.), 960 F.2d 200, 204 (1st Cir. 1992) (citing Celotex
Corp. v. Catrett, 477 U.S. 317, 325 (1986)). “To succeed in showing that there is no genuine
dispute of material fact,” the moving party must “‘affirmatively produce evidence that negates an
essential element of the non-moving party’s claim,’ or, using ‘evidentiary materials already on
file . . . demonstrate that the non-moving party will be unable to carry its burden of persuasion at
trial.’” Ocasio-Hernández v. Fortuño-Burset, 777 F.3d 1, 4-5 (1st Cir. 2015) (quoting Carmona v.
Toledo, 215 F.3d 124, 132 (1st Cir. 2000)).
Conversely, “to defeat a properly supported motion for summary judgment, the
nonmoving party must establish a trial-worthy issue by presenting enough competent evidence to
enable a finding favorable to the nonmoving party.” ATC Realty, LLC v. Town of Kingston,
N.H., 303 F.3d 91, 94 (1st Cir. 2002) (internal quotations and citation omitted). That is, the nonmoving party must set forth specific, material facts showing that there is a genuine disagreement
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as to some material fact. One Parcel of Real Prop., 960 F.2d at 204 (citing Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 256-57 (1986)).
In reviewing the record, the Court “must take the evidence in the light most flattering to
the party opposing summary judgment, indulging all reasonable inferences in that party’s favor.”
Cochran, 328 F.3d at 6 (citation omitted). The First Circuit has noted that this review “is
favorable to the nonmoving party, but it does not give him a free pass to trial.” Hannon v. Beard,
645 F.3d 45, 48 (1st Cir. 2011). “The factual conflicts upon which he relies must be both genuine
and material[,]” Gomez v. Stop & Shop Supermarket Co., 670 F.3d 395, 396-97 (1st Cir. 2012),
and the court may discount “conclusory allegations, improbable inferences, and unsupported
speculation.” Cochran, 328 F.3d at 6 (quoting Medina-Muñoz v. R.J. Reynolds Tobacco Co., 896
F.2d 5, 8 (1st Cir. 1990)).
III.
ANALYSIS
A. Twice the Suction
SharkNinja moves for partial summary judgment on Count I of its Amended Complaint –
i.e., its claim for false advertising under the Lanham Act, 15 U.S.C. § 1125(a). 4 SharkNinja
contends that (1) it is undisputed that Dyson’s TTS claim became literally false upon the launch
of the Shark Lift-Away on July 8, 2014; and (2) this undisputed fact means that SharkNinja is
entitled to judgment as a matter of law on its Lanham Act claim, at least as to the question of
Dyson’s liability. Shark Ninja has not moved for summary judgment as to its alleged damages on
Count I, which will need to be proven at trial.
4
Although SharkNinja has also moved for summary judgment on Count II, which alleges unfair
trade practices in violation of Mass. Gen. Laws ch. 93A, SharkNinja has not adequately
explained why judgment on its Lanham Act claim in Count I would automatically entitle it to
judgment on its Chapter 93A claim. Therefore, the Court declines to enter summary judgment on
Count II at this time. If appropriate, SharkNinja may submit additional briefing, either before or
after trial, explaining why it is entitled to judgment as a matter of law on its state-law claims.
7
Dyson has cross-moved for summary judgment on Count I. First, Dyson argues there is
no basis for liability under the Lanham Act if an advertiser uses “commercially reasonable
efforts” to remove advertising claims from the marketplace once those claims become “stale.”
Dyson contends that the undisputed facts show that it took prompt, commercially reasonable
efforts to remove the TTS claim from the market within a matter of months, and that it is
therefore entitled to judgment as a matter of law on Count I of SharkNinja’s Amended
Complaint.
The Court does not find Dyson’s argument regarding “commercially reasonable efforts”
to be persuasive. It is well-settled that “a showing of intent or lack of good faith on the part of
the defendant is not necessary to make out a claim under the Lanham Act.” Camel Hair &
Cashmere Inst. of Am., Inc. v. Associated Dry Goods Corp., 799 F.2d 6, 13 (1st Cir. 1986);
accord Vector Prods., Inc. v. Hartford Fire Ins. Co., 397 F.3d 1316, 1319 (11th Cir. 2005) (“[N]o
proof of intent or willfulness is required to establish a violation of Lanham Act § 43(a) for false
advertising.”); AMCO Ins. Co. v. Inspired Techs., Inc., 648 F.3d 875, 882 (8th Cir. 2011)
(same); Procter & Gamble Co. v. Chesebrough-Pond’s Inc., 747 F.2d 114, 119 (2d Cir. 1984)
(same); Riverdale Mills Corp. v. Cavatorta N. Am., Inc., 146 F. Supp. 3d 356, 361 (D. Mass.
2015) (“Intent to deceive is not a prima facie element of a false advertising claim under the
Lanham Act.”). Accordingly, several courts have observed that the Lanham Act “has created a
regime of strict liability with regard to false advertising claims.” Spotless Enters., Inc. v. Carlisle
Plastics, Inc., 56 F. Supp. 2d 274, 278 (E.D.N.Y. 1999); accord Vector Prods., Inc., 397 F.3d at
1319.
In an attempt to avoid this strict liability regime, Dyson argues that courts routinely take a
“reasonableness approach” that allows the offending advertiser a reasonable period of time to
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remove false claims from the market. [ECF No. 170, pp. 10-11]. Nearly all of the cases Dyson
cites in support, however, discuss defendants’ compliance with court-issued injunctions. See
Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 879 (9th Cir. 2009);
Hewlett-Packard Co. v. Nu-Kote Int’l, Inc., No. CIV.A.C94-20647, 2000 WL 33992123, at *2
(N.D. Cal. Feb. 14, 2000); FTC v. Chembio Diagnostic Sys., Inc., No. 00CV0081BTM, 2001
WL 34129746, at *5 (E.D.N.Y. Jan. 16, 2001); Schick Mfg., Inc. v. Gillette Co., No. 3:05-cv00174, ECF No. 141 (D. Conn. Sept. 21, 2005). These cases do not stand for the proposition that
a manufacturer may avoid liability or damages for false advertising under the Lanham Act if,
after learning that its advertising is false, it takes prompt, commercially reasonable efforts to
remove its false claims from the marketplace.
Furthermore, Dyson’s proposed interpretation of the Lanham Act is at odds with the text
of the statute itself. Section 43(a) provides in relevant part that:
[a]ny person who, on or in connection with any goods or services,
or any container for goods, uses in commerce any . . . false or
misleading description of fact, or false or misleading representation
of fact, which . . . in commercial advertising or promotion,
misrepresents the nature, characteristics, qualities, or geographic
origin of his or her or another person’s goods, services, or
commercial activities, shall be liable in a civil action by any person
who believes that he or she is likely to be damaged by such act.
15 U.S.C. § 1125(a)(1) (emphasis added). The language of the statute is compulsory, and it
includes no exceptions for cases in which a manufacturer undertakes good faith, commercially
reasonable efforts to remove a false claim from the marketplace upon learning of its falsity. Good
faith is simply not a defense to a false advertising claim under the Lanham Act. See Lyons P’ship,
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L.P. v. D & L Amusement & Entm’t, Inc., 702 F. Supp. 2d 104, 113 (E.D.N.Y. 2010); Spotless
Enters., 56 F. Supp. 2d at 278. 5
Thus, the case law and the statute seem to appropriately establish that an advertiser that
puts a claim into the marketplace bears all of the risk of the claim being false or becoming stale.
An approach that allowed such an advertiser to continue to benefit from false or stale claims, so
long as reasonably commercial efforts were undertaken to remove the advertising, would not
adequately disincentivize the behavior prohibited by the Lanham Act or foster vigilance about the
accuracy of advertising claims. Further, it would unfairly shift the cost of stale or inaccurate claims
from the sponsor of such claims to its competitors, as long as the sponsor made reasonable efforts
to remove those claims. Therefore, the Court rejects Dyson’s proposed interpretation of Section
43(a), as it is not supported by either the text of the statute or the relevant case law, and because it
does not reflect sound policy. 6 As a result, Dyson’s Motion for Summary Judgment on
SharkNinja’s Lanham Act claim is denied.
5
This conclusion is further supported by the history of the Lanham Act. As courts and
commentators have noted, “[i]t was one of the purposes of the drafters of the Lanham Act that §
43(a) remove the requirement of willfulness and intent to deceive contained in the predecessor
1920 Act.” 5 McCarthy on Trademarks and Unfair Competition § 27:51 (4th ed.); see also
Parkway Baking Co. v. Freihofer Baking Co., 255 F.2d 641, 648 n.7 (3d Cir. 1958).
6
In light of this ruling, the Court declines to address Dyson’s alternative argument that
SharkNinja is “estopped” from arguing that Dyson’s removal efforts were unreasonable, based
on positions SharkNinja has taken in other, unrelated false advertising litigations. [ECF No. 223,
pp. 11-14]. Whether or not Dyson acted reasonably promptly in removing its false TTS claim
from the market is not relevant to Dyson’s liability for false advertising under Section 43 of the
Lanham Act. The Court also rejects Dyson’s argument that SharkNinja’s Lanham Act claim is
barred by the doctrine of “unclean hands,” based on SharkNinja’s allegedly illegal conduct
relating to its advertising for the Shark Rocket. [ECF No. 223, pp. 14-17]. This issue cannot be
decided as a matter of law at this point in time, as the facts surrounding this purported defense
are hotly disputed. Further, Dyson has not established a sufficient “nexus” between the TTS
claim and SharkNinja’s own comparison claims regarding its Rocket vacuum. Accordingly,
Dyson’s motion for summary judgment is DENIED as to these points.
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Further, given that Dyson’s “commercially reasonable efforts” are not a defense, and in
light of Dyson’s admission that the TTS claim became literally false no later than July 8, 2014,
SharkNinja is entitled to partial summary judgment on the Lanham Act claim alleged in Count I.
SharkNinja has established, as a matter of law, that Dyson’s TTS claim was “material” – or, in
other words, “likely to influence the purchasing decision.” Clorox, 228 F.3d at 33. Because the
TTS claim focused on suction, which is an “inherent quality or characteristic” of vacuum
cleaners, materiality is presumed. See Saks Fifth Ave., 284 F.3d at 311-12. Likewise, when an
advertising claim is literally false, it is presumed that the claim actually deceived, or has a
tendency to deceive a substantial segment of its audience. In such cases, the court may grant
relief “without considering evidence of consumer reaction.” Clorox, 228 F.3d at 33. Finally,
Dyson does not dispute that it placed the TTS claim into interstate commerce. Accordingly,
SharkNinja is entitled to judgment as a matter of law on the issue of liability. Dyson is liable for
any damages proximately caused by its false TTS advertising claims appearing after July 8,
2014, assuming that SharkNinja proves such causation and damages at trial.
Dyson, perhaps in anticipation of this ruling, has also moved for summary judgment on a
subsidiary issue – namely, whether Dyson’s false advertising was “willful and knowing.” See
Compl. ¶¶ 45-55. Although no proof of intent or willfulness is required to establish liability
under Section 43 of the Lanham Act, see Vector Prods., Inc., 397 F.3d at 1319, a finding that the
defendant acted knowingly and willfully may, in some cases, support an award of enhanced
damages, disgorgement of profits, and/or attorneys’ fees. See 15 U.S.C. § 1117(a); 7 Fishman
Transducers, Inc. v. Paul, 684 F.3d 187, 191 (1st Cir. 2012) (noting that a finding of willfulness
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Section 1117(a) provides that “in assessing damages the court may enter judgment, according
to the circumstances of the case, for any sum above the amount found as actual damages, not
exceeding three times such amount,” and that in “exceptional cases,” the court may award
reasonable attorney fees to the prevailing party. 15 U.S.C. § 1117(a).
11
is typically required to award multiple damages, or a recovery of the defendant’s profits); Merck
Eprova AG v. Gnosis S.p.A., 760 F.3d 247, 261 (2d Cir. 2014) (affirming district court’s award
of defendant’s profits, where defendant’s false advertising was willful, and award of profits was
“necessary to deter future unlawful conduct, prevent [defendant’s] unjust enrichment, and
compensate [plaintiff] for the business it lost as a result of the false advertising”).
Although it is the Court that ultimately decides whether to award profits, enhanced
damages, and/or attorney’s fees under 15 U.S.C. § 1117(a), this decision must be informed by
subsidiary factual findings, including a finding on willfulness. In the context of civil claims
under the Lanham Act, “willfulness requires a conscious awareness of wrongdoing by the
defendant or at least conduct deemed ‘objectively reckless’ [when] measured against standards
of reasonable behavior.” Fishman Transducers, 684 F.3d at 191. Here, there are abundant factual
disputes bearing on whether Dyson acted knowingly and willfully. Dyson is therefore not
entitled to judgment as a matter of law on the issue of willfulness, and its motion for summary
judgment as to willfulness is DENIED. If warranted, the Court may ask the jury to make factual
findings on these points, to assist the Court in determining any damages award. See id.
B. The Rocket “deep cleans carpets better than a full-size Dyson”
SharkNinja has also moved for summary judgment on Dyson’s Lanham Act
counterclaim, on the grounds that there is no evidence that the Shark Rocket advertising was
false or misleading, as required to prevail on a false advertising claim under Section 43(a) of the
Lanham Act. See Saks Fifth Ave., 284 F.3d at 310-11.
A party can prove the falsity element of a false advertising claim in two ways—first, by
proving that the defendant’s advertisement is literally false, or second, by proving that the
advertisement is “implicitly false—that is, the advertisement is true or ambiguous yet
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misleading.” Id. at 311. “Where the advertisement is literally false, a violation may be
established without evidence of consumer deception.” Id. “Where the advertisement is implicitly
false, however, ‘an additional burden is placed upon the plaintiff to show that the advertisement .
. . conveys a misleading message to the viewing public.’” Id. (quoting Clorox, 228 F.3d at 33).
In its counterclaims, Dyson alleges that the claim that the Shark Rocket “cleans carpets
better than a full-sized Dyson*” is both literally and impliedly false. First, Dyson asserts that the
claim is literally false because the claim necessarily communicates to consumers that the Rocket
can outperform every full-size Dyson upright vacuum. According to Dyson, the footnote on the
package (identifying the DC40 as the relevant Dyson vacuum) is without any effect, because the
footnote’s size and placement on the box made it virtually impossible for consumers to read.
Alternatively, Dyson argues that it can prove SharkNinja’s claims were at least implicitly false,
because it has ample survey evidence that consumers were, in fact, deceived by these claims.
SharkNinja argues that it is entitled to summary judgment on Dyson’s counterclaims,
because (1) the claims were literally true, and (2) Dyson cannot establish implied falsity, as its
survey evidence is fatally flawed. The Court is not persuaded by either of these arguments.
First, “[w]hether an advertisement is literally false is typically an issue of fact.” Clorox,
228 F.3d at 34. The First Circuit has noted that:
[a]t least two factual questions must be answered in evaluating the
accuracy of any particular advertisement. First, a factfinder must
determine the claim conveyed by the advertisement. Once the claim
made by the advertisement has been determined, the factfinder must
then evaluate whether that claim is false.
Id. (internal citations omitted). Here, there is a threshold factual dispute about what message was
actually communicated by the promotional claim that the Shark Rocket “cleans carpets better than
a full-sized Dyson*”. SharkNinja contends that the footnote disclaimer is an integral part of the
claim, and that the claim is literally true because the Shark Rocket did, in fact, clean carpets better
13
than the DC40. SharkNinja further argues that even if the footnote is disregarded, the claim
remains literally true because the Shark Rocket did clean carpets better than “a” full-sized Dyson
upright (namely, the DC40). SharkNinja notes that it did not expressly claim that the Shark Rocket
cleans carpets better than every full-sized Dyson vacuum. Dyson, in contrast, argues that the
footnote disclaimer is entirely ineffective, and that when considered in context, the claim actually
communicates that the Shark Rocket cleans carpets better than every full-sized Dyson. The Court
cannot resolve this dispute on summary judgment, because what message the claim actually
communicates or necessarily implies is a factual dispute best resolved by a jury. Accordingly,
SharkNinja is not entitled to judgment as a matter of law on the issue of literal falsity.
Next, SharkNinja argues that Dyson cannot prove implied falsity, because the survey
evidence on which Dyson relies is “inherently flawed.” When a Lanham Act claim is based on a
theory of implied falsity, the plaintiff “has the burden of proving that a substantial portion of the
audience for that advertisement was actually misled.” Clorox, 228 F.3d at 36. “An advertisement’s
propensity to deceive the viewing public is most often proven by consumer survey data.” Id.
Here, Dyson retained a consultant (Dr. Ran Kivetz) to design, implement, and analyze the
results of a consumer perception survey relating to the Shark Rocket advertisement at issue. Dyson
intends to present Dr. Kivetz’s report on that survey as expert opinion testimony in this case.
SharkNinja appears to have retained its own survey expert, Joel Cohen, who authored a rebuttal
report identifying several alleged flaws in Dr. Kivetz’ survey. Although some of SharkNinja’s
criticisms of the Kivetz survey may be well-founded, these purported flaws go to the weight, and
not the admissibility, of the proffered expert testimony. See POM Wonderful LLC v. Organic Juice
USA, Inc., 769 F. Supp. 2d 188, 200 (S.D.N.Y. 2011); Merisant Co. v. McNeil Nutritionals, LLC,
242 F.R.D. 315, 324 (E.D. Pa. 2007). The Court does not find that the Kivetz survey is so flawed
14
or unreliable that this evidence should be excluded at trial. Because the Kivetz survey is
admissible, and because it provides some evidence of consumer deception, SharkNinja’s motion
for summary judgment is denied as to the issue of implied falsity. 8
IV.
CONCLUSION
For the foregoing reasons, SharkNinja’s Motion for Summary Judgment [ECF No. 171]
is ALLOWED with regard to the issue of Dyson’s liability on Count I of the Amended
Complaint. SharkNinja’s Motion is otherwise DENIED. Dyson’s Motion for Summary Judgment
[ECF No. 169] is also DENIED.
SO ORDERED.
Dated: August 3, 2016
/s/ Allison D. Burroughs
ALLISON D. BURROUGHS
DISTRICT JUDGE
8
SharkNinja also argues that Dyson cannot establish that the “cleans carpets better than a full
size Dyson” claim was material to consumers. The Court disagrees. Because the advertising
claim focuses on the Rocket’s cleaning ability, which is an “inherent quality or characteristic” of
vacuum cleaners, materiality is presumed. See Saks Fifth Ave., 284 F.3d at 311-12.
15
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