Trex Company, Inc. v. AZEK Building Products, Inc.
MEMORANDUM OPINION. Signed by District Judge Elizabeth K. Dillon on 8/1/2017. (jat)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
TREX COMPANY, INC.
CPG INTERNATIONAL LLC d/b/a AZEK
Civil Action No. 5:17-cv-00005
By: Elizabeth K. Dillon
United States District Judge
Plaintiff Trex Company, Inc. (Trex), filed a verified complaint on February 1, 2017,
seeking damages and injunctive relief against the defendant, AZEK.1 Trex asserts that AZEK,
who competes with Trex in the wood-alternative decking industry, has engaged in an advertising
campaign that includes numerous statements of false advertising in violation of the Lanham Act,
15 U.S.C. § 1051 et seq.
Pending before the court and addressed in this memorandum opinion are two related
motions. The first is Trex’s motion for a preliminary injunction (Dkt. No. 13), in which Trex
asks the court to: enjoin AZEK from publishing the false statements identified in the verified
complaint and/or any other false or misleading commercial statements; require AZEK to remove
those statements from certain websites, Facebook, and other locations; require AZEK to publish
various corrective statements and to send retraction letters to all known recipients of those
statements; and to destroy immediately all advertising and promotional materials that contain the
statements and/or any other false or misleading commercial statements.
Plaintiff originally named “Azek Building Products, Inc.,” but on consent motion, the caption of the case
was modified to name the proper defendant, CPG International LLC d/b/a AZEK Building Products.” Just as the
parties did in their briefing, the court refers to the defendant as AZEK.
The second motion is AZEK’s motion to dismiss (Dkt. No. 23), which is based on its
contention that all of the challenged statements are mere “puffery” and are not actionable under
the Lanham Act. Both motions have been fully briefed, and the court received evidence and
heard argument over the course of a two-day hearing. The court will address the motion to
dismiss first because a dismissal of all claims would effectively moot the motion for preliminary
injunction. For the reasons set forth below, the motion to dismiss will be granted in part and
denied in part, and the motion for preliminary injunction will be denied.
The materials that the court can consider when ruling on the motions differs for the two
motions. When ruling on the motion to dismiss, the court is limited to a consideration of the
allegations of the complaint and any documents attached thereto or incorporated by reference.
Zak v. Chelsea Therapeutics Int’l, Ltd., 780 F.3d 597, 606 (4th Cir. 2015) (citing E.I. du Pont de
Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 448 (4th Cir. 2011)). The court treats the
factual allegations in the complaint as true and construes them in the light most favorable to the
plaintiff. Coleman v. Md. Court of Appeals, 626 F.3d 187, 189 (4th Cir. 2010); Lovern v.
Edwards, 190 F.3d 648, 654 (4th Cir. 1999).
For purposes of the motion for preliminary injunction, the court can consider a broader
range of documents and information, including the testimony offered at the preliminary
injunction hearing and the declarations and affidavits submitted by the parties. The Fourth
Circuit, following the lead of seven other circuits, has stated that a district court ruling on a
preliminary injunction “may look to, and indeed in appropriate circumstances rely on, hearsay or
other inadmissible evidence when deciding whether a preliminary injunction is warranted.” G.G.
ex. rel. Grimm v. Gloucester Cty. Sch. Bd., 822 F.3d 709, 725–26 (4th Cir. 2016), vacated and
remanded on other grounds, 137 S. Ct. 1239 (2017). Additionally, “[i]n granting or refusing an
interlocutory injunction,” the court is required to find the facts specially and state its conclusions
of law separately. Fed. R. Civ. P. 52(a)(2).
Much of the testimony offered over the course of the hearing focused on elements of the
plaintiff’s Lanham Act claim. The court does not reach these issues at this time based on its
rulings herein. These include issues of whether the allegedly false statements had the tendency
to deceive, were material, and whether they were likely to cause injury to Trex. Accordingly, it
is not necessary to discuss that testimony in any detail. Instead, the court will make findings of
fact only insofar as they are necessary to the court’s legal analysis.
A. The Wood-Alternative Decking Industry
Because it is important for purposes of both motions to understand the business context in
which this case arises, the court begins with a brief overview of the industry in which AZEK and
Trex compete: the wood-alternative decking industry. The industry focuses on providing an
alternative to natural wood decking for consumers and those who build or install decks. Trex
“pioneered the very first wood-alternative decking products,” beginning in 1992. (Pl.’s Mem.
Supp. Mot. Prelim. Inj. 3, Dkt. No. 14.) Although a number of other companies have begun
offering competing products, including AZEK, Trex still has the largest market share and the
largest amount of gross sales of any company in the wood-alternative decking industry.
According to a report on the industry prepared by an independent market research firm, Trex is
the best-selling decking and railing brand, outselling second-place AZEK/TimberTech by a
substantial margin. (Id. at 4.) Indeed, AZEK has conceded, for purposes of the pending
motions, that Trex has a greater market share and higher gross sales than AZEK. There are a
number of other companies that compete in the same marketplace, although Trex and AZEK are
the two largest. According to one of Trex’s witnesses, four or five manufacturers comprise at
least 85% of the market, but there are also a number of smaller competitors.
AZEK sells its product under both the AZEK and TimberTech brands.2 The AZEK
brand consists entirely of PVC decking products, which generally are more expensive than wood
composite decking. Timber Tech is the division of AZEK that sells the capped composite
decking, which competes directly with Trex’s capped composite decking. According to at least
one witness, PVC and capped composites make up the entirety of the wood-alternative decking
industry, also known as the “premium decking” industry.
The parties spent considerable time at the hearing eliciting testimony concerning the
companies’ respective distribution chains. This was done primarily to augment each side’s
arguments concerning who makes the purchasing decisions about which brand of alternative
wood decking to use—consumers or contractors—and to highlight the target audience for the
various advertisements. Both companies sell their products in similar ways. Notably, neither
sells directly to consumers or homeowners, and it is not possible to order products from their
websites. Instead, they typically sell to distributors or wholesalers, who then sell to lumber
yards. The lumber yards, in turn, sell primarily to contractors and home builders. Both
companies also attempt to sell directly to big-box stores like Lowe’s and Home Depot, although
currently Trex is the only brand of wood-alternative decking products stocked on the shelves at
both Home Depot and Lowe’s. The big box stores then sell to contractors and do-it-yourselfers.
Relevant to certain of the elements of a Lanham Act false advertising claim, it is Trex’s
factual position that advertising targeted to consumers is very important and greatly affects sales.
It has submitted an affidavit from one of its salespeople explaining how important consumer
According to Mr. Hyatt, one of AZEK’s witnesses, TimberTech and AZEK began as separate companies.
They merged in either 2012 or 2013 to form AZEK Building Products, which now sells products under both names.
choice is to the decision, and several of its witnesses testified about this. AZEK disputes this and
points instead to certain reports, as well as testimony from its own witnesses, suggesting that
consumers do not really have that much impact on which brand is used for their deck and that the
decision is more often influenced or made by industry professionals. The court need not resolve
this factual dispute at this time.
The court also heard a significant amount of testimony comparing the Trex and
TimberTech products. They are very similar, but do differ slightly in some respects. For
example, TimberTech’s composite capped product is capped on four sides, whereas Trex’s is
only capped on three.3 TimberTech also offers a longer warranty against staining and fading (30
years versus Trex’s 25 years) and a lifetime warranty on manufacturing defects, which Trex does
not offer. AZEK also presented a lot of detailed testimony about testing by a third party that it
hired, in which its products performed significantly better than Trex products, as to both fading
and as to the rate of water absorption.
B. The Allegedly False Statements
Having provided that background, the court next turns to the categories of statements
identified by Trex as being actionable under the Lanham Act. Trex challenges all of these
categories because it believes they falsely state or suggest that AZEK is the market leader in
sales. It claims that AZEK began this extensive advertising campaign, which primarily targets
consumers, as an attempt to build up AZEK’s brand while tearing down Trex’s. It argues that
the messages are intended to convey “a single unambiguous, and verifiably false message:
AZEK, through its AZEK and TimberTech brands, is the market-leader in sales and the top
Capping is the process of adding material across the top surface of the composite board, which gives the
board its fade-, stain-, and scratch-resistant properties. A capped board also resists water intrusion better than an
choice of consumers.” (Pl.’s Reply Supp. Mot. Prelim. Inj. 1, Dkt. No. 48.) There are four
categories of challenged statements.
First, there are the so-called “#1” statements, which include the statements that AZEK is
“the #1 in Premium Decking” and “Number One in Premium Decking.” These statements have
been published in a number of places, including an advertisement in the LBM Journal and on
AZEK’s website.4 (Compl. ¶¶ 27–32 & Exs. A & B, Dkt. No. 1.) The pages on which these
statements appear do not reference sales volume or market share. Instead, the paragraphs below
the statements reference “the best high-performance building materials available,” AZEK’s
“commitment to technology and materials science innovation,” and “our dedication to inspiring
design and style.” (Id. at Ex. B.) In smaller font, there is a paragraph comparing AZEK to wood
decking and discussing its “30-year limited fade and stain and lifetime limited warranties.”
The second group of statements are the 2-to-1 statements. Specifically, on TimberTech’s
website, AZEK advertised that TimberTech “is a preferred choice 2-to-1 over the competition.”
In another place on the site, it states: “Across the country, TimberTech’s premium wood
replacement materials are a preferred choice 2-to-1 over the competition.” (Id. ¶¶ 33–35 & Ex.
C.) Again, there is no specific reference in those statements appear to sales volume or market
share. Instead, there are three paragraphs devoted to touting specific characteristics of
TimberTech’s product, titled “Low Maintenance,” “Extremely Durable,” and “Leading
Third, AZEK’s CEO stated at the January 2017 Internal Builders’ Show and later
provided as part of a press release that AZEK is “the preferred premium leader in the categories
According to the complaint, “[t]he LBM Journal is the leading national trade magazine for the lumber and
building materials distribution industry, and subscriptions are free for industry professionals. It is targeted to the
very building materials suppliers that both Trex and AZEK rely on to distribute their products to consumers.”
(Compl. ¶ 28.)
where we offer products.” (Id. ¶¶ 35–37 & Ex. D.) Again, that press release then references
AZEK’s warranty. On a separate page of the same press release, AZEK claims is it “the leader
in performance, aesthetics, and innovation” and again references “the best warranties in the
Fourth and finally, AZEK has advertised that “TimberTech Is the #1 Provider in Design
Preference,” which statement followed the question, “Looking to build your dream deck?” That
statement appeared on TimberTech’s website and as a sponsored ad on Facebook page. (Id.
¶¶ 38–39 & Ex. E.)
In terms of timing, the 2-to-1 statements (which are the only statements that the court
concludes are not puffery), appeared on both the home page (as one of several rotating banner
images) and the products page of TimberTech’s website from October 5, 2016, until
approximately January 23, 2017, and were removed after Trex sent to AZEK a cease and desist
letter.5 In both a corrected declaration and at the hearing, Mr. Czachor, who works in AZEK’s
marketing department as “Brand Manager,” testified that the 2-to-1 statement will not be restored
on the website during the pendency of the litigation. (E.g., Czachor Corrected Decl. ¶ 11, Dkt.
There is a dispute of fact as to AZEK’s motivation for removing the language. Trex has argued that it
was done in response to the cease and desist letter. AZEK has offered testimony explaining that the language was
removed not because of the cease and desist letter, but because it was not performing well as part of a search engine
optimization (SEO) strategy to drive customers to the website. The court need not resolve this dispute at this time.
Although some of Mr. Czachor’s testimony at the hearing was not credible, and although there is some
question as to whether he has the authority to ensure that the statement will not be restored during the pendency of
the litigation, the court will take him at his word as to this issue. The court notes, though, that it does not rest its
ruling in part or in whole on this assurance.
A. Motion to Dismiss
A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of a plaintiff’s
complaint to determine whether the plaintiff has properly stated a claim. Edwards v. City of
Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). To avoid dismissal, the “complaint must establish
‘facial plausibility’ by pleading ‘factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.’” Clatterbuck v. City of
Charlottesville, 708 F.3d 549, 554 (4th Cir. 2013) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009)). Basically, the plaintiff must allege facts to “nudge [his] claims across the line from
conceivable to plausible.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
To succeed on a false advertising claim under the Lanham Act, Trex must establish five
elements, the first of which is that “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.”
PBM Prods., LLC v. Mead Johnson & Co., 639 F.3d 111, 120 (4th Cir. 2011).
In its motion to dismiss, AZEK argues that all of the statements challenged by Trex fail
to satisfy this first element because they all “involve paradigmatic ‘puffery.’” (Def.’s Mem.
Supp. Mot. Dismiss 5, Dkt. No. 24.) That is, in order to trigger liability under the Lanham Act,
advertising must consist of false or misleading statements of fact. “Puffery,” by contrast, is
“exaggerated advertising, blustering, and boasting,” or “vague” and “general claim[s] of
superiority.” Verisign, Inc. v. XYZ.com LLC, 848 F.3d 292, 302 (4th Cir. 2017) (citations
omitted). Because puffery is not a factual statement and because “no reasonable person would
rely on such superlatives,” it is not actionable under the Lanham Act. Id. at 302–03.
In appropriate circumstances, courts may determine as a matter of law that a particular
statement is puffery when ruling on a motion to dismiss under Rule 12(b)(6). Cook, Perkiss &
Liehe, Inc. v. N. Cal. Collection Serv. Inc., 911 F.2d 242, 245 (9th Cir. 1990) (“District courts
often resolve whether a statement is puffery when considering a motion to dismiss pursuant to
Federal Rule of Civil Procedure 12(b)(6)[,] and we can think of no sound reason why they
should not do so.”). A number of district courts within the Fourth Circuit have concluded that
certain statements were non-actionable puffery when ruling on a Rule 12(b)(6) motion to
dismiss. E.g., Solum v. CertainTeed Corp., 147 F. Supp. 3d 404, 412 (E.D.N.C. 2015)
(dismissing claim under North Carolina Unfair and Deceptive Trade Practice Act because
statement that was basis of claim was puffery); Walters v. Pella Corp., No. 2:14-cv-544, 2015
WL 2381335, at *5 (D.S.C. May 19, 2015) (dismissing some of the bases for plaintiff’s breach
of implied warranty claim on the grounds that certain of the statements were puffery); Imagine
Medispa, LLC v. Transformations, Inc., 999 F. Supp. 2d 873, 881–82 (S.D.W. Va. 2014)
(dismissing Lanham Act claim because statements were puffery).
The court rejects Trex’s suggestion that, because the statements are all part of one
advertising campaign and they are all part of misleading scheme, the court should consider all
the statements together. Instead, the court must review each statement separately to determine
whether it is mere puffery or an actionable statement under the Lanham Act. Verisign, 848 F.3d
at 299 (“[A] Lanham Act claimant may not mix and match statements, with some satisfying one
Lanham Act element and some satisfying others”). So, the court does not consider the
challenged statements “in concert,” but separately. Id. (quoting Johnson & Johnson Vision Care,
Inc. v. 1-800 Contacts, Inc., 299 F.3d 1242, 1248 (11th Cir. 2002)).
The court thus turns to the four categories of statements identified by Trex as being
false.7 The court addresses together the first and fourth categories because both involve types of
“number one” statements and similar principles apply to both. Ultimately, the court concludes
that all of the statements, with the exception of the “2-to-1” statements, are puffery and are not
actionable under the Lanham Act.
1. The “#1” statements
AZEK has cited to a number of cases in which #1 claims have been determined to be
puffery. In response, Trex argues that these cases are distinguishable on their facts and focuses
its analysis on four, in particular: In re Century 21-RE/MAX Real Estate Advert. Claims Litig.,
882 F. Supp. 915 (C.D. Cal. 1994), Bridal Expo, Inc. v. van Florestein, No. 4:08-cv-03777, 2009
WL 255862 (S.D. Tex. Feb. 3, 2009), Home Show Tours, Inc. v. Quad City Virtual, Inc., 827 F.
Supp. 2d 924 (S.D. Iowa 2011), and Hacket v. Feeney, No. 2:09-cv-02075, 2011 WL 4007531
(D. Nev. Sept. 8, 2011). Trex also cites to a number of cases in which similar statements were
found not to be puffery. (Pl.’s Opp’n to Mot. Dismiss 3 n. 2, Dkt. No. 39.)
AZEK appears to contend that a statement that a business is #1 can never be anything but
puffery, but the Fourth Circuit instructs that statements must be read in context. Verisign, 848
F.3d at 303. Context means not only that the court must review the statements in and around the
challenged statement, id., but also the context of the industry. See C.B. Fleet Co. v. SmithKline
Beecham Consumer Healthcare, L.P., 131 F.3d 430, 434 (4th Cir. 1997) (noting that liability for
Trex has also pleaded, in the alternative, that even if the statements are not false, they are “grossly
misleading and deceive customers.” (Compl. ¶¶ 32, 35, 37, 39.) But the court does not even reach the question of
whether a statement is literally false or instead misleading if the statement is puffery. Puffery cannot, by definition,
mislead consumers because it is a type of statement on which no reasonable consumer would rely. Verisign, 848
F.3d at 303. Thus, this alternative pleading does not affect the court’s ruling that the claims based on non-actionable
puffery must be dismissed.
false advertising must be considered “given the merchandising context”). Thus, the court
discusses briefly the context in these other cases and compares that to the context here.
The Century 21 case also involved two competing companies, one older and more
established than the other. The district court in Century 21 ruled that a statement made at the
newer company’s sales conference saying “[W]e obviously are going to broadcast the fact that
we are now number 1 in the United States” was non-actionable puffery. Id. at 928. Likewise,
the court determined that a statement saying that the chairman had “declared RE/MAX #1 in the
United States—and the World” was “classic puffery” because it “makes no reference to the
category in which RE/MAX is number one.” Id.
Trex argues that the Century 21 case is distinguishable on two grounds. First, Trex
contends that, unlike here, the statements in Century 21 did not specify a particular “category” as
to which the #1 statement applied. Id. at 928–29. By contrast, the argument continues, AZEK’s
statements in fact refer to specific “categories”: they reference either “premium decking” or
“design preference.” But premium decking simply designates the industry here, and it is plain
that RE/MAX and Century 21 competed in the real estate industry. So that is a distinction
without a difference. As to the use of “design preference,” that is simply an additional vague
term and does not convert the puffery into a factual statement.
Second, Trex correctly notes that, in Century 21, there were repeated disclaimers or
caveats given in conjunction with the #1 statements, in which RE/MAX stated that it could not
be entirely sure of its #1 status because its competitors would not release their numbers. Id. No
such caveats appear on or around the challenged #1 statements by AZEK. That is certainly a
difference, but ultimately what matters is whether the statement at issue is a “vague” and
“general claim of superiority,” rather than a factual statement. Verisign, 848 F.3d at 302. The
court concludes that the statements here cannot reasonably be interpreted as factual statements
and are therefore puffery. The other cases discussed by the parties also support the court’s
In Bridal Expo, Inc., for example, the court held that a statement that a particular show as
“Houston’s #1 Bridal Show” was too ambiguous to be actionable. 2009 WL 255862, at *7. The
statement fell “neatly into the category of ‘bald assertion of superiority or a general statement of
superiority’ that the Pizza Hut court described as puffery.” Id.
Similarly, in Home Show Tours, Inc., the statements at issue were made by a for sale by
owner (FSBO) website, who boasted that it was “the #1 FSBO destination in the [Quad-City
Area],” that it was “the one and only 100% FSBO website of the Quad Cities,” and that it had the
“best exposure in the [Quad-City Area].” 827 F. Supp. 2d at 939. The court concluded that all
of these statements were puffery, noting that they were nothing more than “vague or highly
subjective claims of product superiority” or “bald assertions of superiority.” Id. It noted
specifically that the claims of superiority also did not state that they were based upon studies or
other empirical data, and so they were mere puffery. Id. at 940.
The claims here are similar. Although Trex insists the #1 reference must be a reference
to sales, the ads themselves do not state that, nor do the pages on which they appear reference
sales. They are instead “bald assertions of superiority.” See id. at 939.
Similarly, Hacket involved an advertisement that a stage show was “Voted #1 Best Show
in Vegas.” 2011 WL 4007531, at *4. The court concluded that the statement was nonactionable puffery under the Lanham Act. It also noted, though, that if the statement had said
who had voted it the best show in Vegas, and there was no actual vote, then it might have been
actionable, noting the “line between [the statement at issue] and false advertising may be a thin
one.” Id. at *5. Here, unlike in Hacket, none of the #1 statements say it was voted or preferred
as #1, but similar to Hacket, there is no indication of who thinks AZEK is #1.
Additionally, when discussing whether the statements before it were puffery, the Fourth
Circuit in Verisign cited repeatedly—and favorably—to the Eighth Circuit’s decision in
American Italian Pasta Co. v. New World Pasta Co., 371 F.3d 387, 390 (8th Cir. 2004). There,
the court held that the statement “America’s Favorite Pasta” was puffery, in part because no
“specific person or  identifiable group” is indicated as favoring the product. Verisign, 848 F.3d
at 303 (quoting Am. Italian Pasta Co., 371 F.3d at 391 & n.5). Like the statements in both
Hacket and American Italian Pasta, no specific person or identifiable group is indicated as
favoring AZEK’s product here.
Trex characterizes AZEK’s statements as saying that it is “number one (i.e., consumers
choose its products more than those of any other manufacturer) in the specific product or market
segment of wood-alternative decking” (Opp’n to Mot. Dismiss), but the statements themselves
do not say that consumers choose TimberTech (or AZEK) more or that the metric being assessed
is sales volume. Instead, AZEK has advertised that it is “#1 in Premium Decking” and that
“TimberTech is the #1 Provider in Design Preference.” Those statements do not indicate who
believes AZEK is #1. And although they contain the words “in design preference” or “in
premium decking,” they do not specify a particular category of measure. That is, AZEK’s
statements do not say they are #1 in market share, or sales volume, or price, or customer
satisfaction, or in giving the best warranty, or in any number of other categories.
When they testified, it was plain that Trex and its employees interpreted those #1
statements as referring to market share or sales volume, and the court understands their point of
view. Particularly since those employees work for a company that is the market leader and touts
that as an important feature of its products, it is not surprising that they interpret the #1 or leader
statements in that fashion. But the challenged statements are far more ambiguous than that and
are simply too vague to be anything but puffery.
Furthermore, as to the “design preference” claim, the court is not even sure what that
means. But the court is certain that it is entirely too vague to be interpreted as a claim that
TimberTech is #1 in sales volume. Thus, it is axiomatic puffery. See Solum v. Certainteed
Corp., 147 F. Supp. 3d 404, 412 (E.D.N.C. 2015) (“Puffery is an exaggerated statement which
no reasonable buyer would be justified in relying on or a claim of superiority so vague that
nothing can be understood from it except that it is an opinion.”) (citation omitted).
Trex also points out that, in the same website page where “#1 in premium decking”
appears, AZEK also advertises that it is “#1 in performance trim.” In terms of sales volume or
market share, AZEK apparently is the sales leader in performance trim. From this, Trex argues
that the #1 used in the same context should be interpreted to mean the same thing. But the fact
that AZEK happens to be the sales leader for performance trim does not mean that the statement
“#1 in performance trim” is intended to convey that. That statement, just as with the other #1
statements challenged here, is simply too vague to be meaningful at all, and the court concludes
that all of the #1 statements are puffery. Thus, they cannot support a violation of the Lanham
Act. The motion to dismiss will be granted insofar as it relates to the #1 statements.
2. The “leader” statements
Similarly, the third category of statement, about AZEK being the “preferred premium
leader in the categories where we offer products” is so ambiguous as to be puffery. First of all,
there is ample authority holding that statements that a company is “the leader” are generally
puffery. See, e.g., Earthcam, Inc. v. Oxblue Corp., No. 1:11-cv-02278, 2012 WL 12836518, at
*4–*7 (N.D. Ga. Mar. 26, 2012) (concluding that defendant’s statement that it is “the leader in
construction camera services and technology” was a “general statement of superiority over all
other competitors” and thus non-actionable puffery); Intertape Polymer Corp. v. Inspired Techs.,
Inc., 725 F. Supp. 2d 1319, 1334–35 (M.D. Fla. 2010) (concluding that “industry leader”
statement was “classic puffery”). Much like the “#1 statements,” the statement that someone is
the “preferred premium leader” does not say by whom. Nor does it identify a measure in which
the company leads (e.g., aesthetics, warranty offerings, variety of products offered, sales volume,
etc.) So, again, the court concludes that this statement, too, is mere puffery. The motion to
dismiss the complaint, insofar as it relates to this statement, is granted.
3. The “2-to-1” statements
In contrast to the other advertisements that the court has already discussed, the court
concludes that the “2-to-1” advertisements are not puffery. First of all, there is more specificity
in these advertising statements, because they give a ratio, which implies that there is some data to
back up the claim. This renders them less vague and more empirical. This fact easily
distinguishes these statements from the two cases cited by AZEK, which involved only general
statements of superiority, using only subjective terms. (Compare Def.’s Mem. Supp. Mot.
Dismiss 15–16 (citing Rosenthal Collins Grp., LLC v. Trading Techs. Int’l, Inc., No. 05-cv-4088,
2005 WL 3557947, at *10 (N.D. Ill. Dec. 26, 2005) (holding that claims touting defendant’s
computer software product as “innovative” and as “leveling the playing field” were puffery), and
Paduano v. Am. Honda Motor Co., 88 Cal. Rptr. 3d 90, 129 (Cal. Ct. App. 2009) (concluding
advertisement touting a hybrid car as getting “terrific” gas mileage relative to unspecified
conventional cars was puffery).) Moreover, the ratio given in this case is not so high that a
consumer could not reasonably rely on it. Cf. In re General Motors Corp. Anti-Lock Brake
Prods. Liab. Litig., 966 F. Supp. 1525, 1531 (E.D. Mo. 1997) (concluding that a statement that
something is 99 percent more effective, or that a result is 100 times more likely are the type of
“comparative claims, often involving large numbers, [that] are puffing because a consumer
cannot reasonably believe there is a test behind the claim”).
As AZEK correctly notes (Def.’s Reply to Pl.’s Opp’n to Mot. Dismiss 16, Dkt. No. 45),
the simple fact that numbers and a ratio are used does not mean the statement cannot be puffery.
But in the context here, the court concludes that the overall statement is sufficiently specific that
it is more akin to a statement of fact than opinion or puffery and something on which consumers
might be expected to rely.
Additionally, the court is unconvinced by AZEK’s argument that the use of the indefinite
article “a” rather than “the” is determinative here. Specifically, AZEK contends that the
statements do not claim that TimberTech is “the” preferred choice but “a” preferred choice and
thus that the statements are so vague as to be puffery. (Def.’s Mem. Supp. Mot. Dismiss 16.)
While the specific words used matter, the court cannot agree that the statements are so vague as
to be puffery. These statements note that AZEK is preferred (whether by consumers or others
who purchase alternative wood decking) and by a specific amount (2 to 1). The court cannot say
that, as a matter of law, the statements are so vague as to be puffery.
Indeed, these statements are similar to a statement that the Century 21 court determined
was not puffery. Specifically, that court concluded that a statement suggesting that the
competitor’s real estate agents were outselling others “3 to 1” was not puffery. AZEK contends
that the statement in Century 21 was more specific than the statement here, because it
specifically referenced sales, while the statement here simply says that TimberTech is “a
preferred choice” by a ratio of 2 to 1 and thus does not specifically reference sales volume. The
court believes, though, that although sales is not mentioned in the metric here, the use of the
word “preferred choice,” especially when combined with the reasonable ratio given, states a
sufficient factual statement that can be false, or at least misleading.
As to the 2-to-1 statements, therefore, the motion to dismiss will be denied because the
statements can potentially give rise to liability under the Lanham Act. The motion to dismiss
will be granted, however, as to the other advertising claims on which the complaint seeks to base
liability because the court has determined that those other statements are all puffery.
B. Motion for Preliminary Injunction
Having found that one of the statement categories is not puffery and thus potentially
actionable, the court turns next to Trex’s motion for preliminary injunction and addresses it only
as to the 2-to-1 statements.
1. Legal standards
As the Supreme Court explained in Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7,
22 (2008), a preliminary injunction is “an extraordinary remedy that may only be awarded upon
a clear showing that the plaintiff is entitled to such relief.” Under the applicable standard
articulated in Winter, the movant “must establish  that he is likely to succeed on the merits, 
that he is likely to suffer irreparable harm in the absence of preliminary relief,  that the
balance of equities tips in his favor, and  that an injunction is in the public interest.” Centro
Tepeyac v. Montgomery Cty., 722 F.3d 184, 188 (4th Cir. 2013) (en banc) (quoting Winter, 555
U.S. at 20; see also League of Women Voters of N.C. v. North Carolina, 769 F.3d 224, 249 (4th
Cir. 2014) (discussing and applying Winter standard); and Dewhurst v. Century Aluminum Co.,
649 F.3d 287 (4th Cir. 2011) (discussing and applying Winter standard). All four of these
requirements must be met for a plaintiff to obtain preliminary injunctive relief. Real Truth About
Obama, Inc. v. FEC, 575 F.3d 342, 345–46 (4th Cir. 2009), vacated on other grounds, 559 U.S.
“The traditional office of a preliminary injunction is to protect the status quo and to
prevent irreparable harm during the pendency of a lawsuit ultimately to preserve the court's
ability to render a meaningful judgment on the merits.” In re Microsoft Corp. Antitrust Litig.,
333 F.3d 517, 525 (4th Cir.2003). A mandatory injunction, however, disturbs the status quo
ante, which “in any circumstances is disfavored.” League of Women Voters of N.C., 769 F.3d at
235 (citation omitted).
2. Likelihood of success on the merits
The first Winter factor requires the court to determine Trex’s likelihood of success on the
merits as to the 2-to-1 statements. As noted above, to prove its false advertising claim under the
Lanham Act, Trex will have to establish five elements:
(1) the defendant made a false or misleading description of fact or
representation of fact in a commercial advertisement about its own or
(2) the misrepresentation is material, in that it is likely to influence the
(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
(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 Prods., LLC v. Mead Johnson & Co., 629 F.3d 111, 120 (4th Cir. 2011).
As the Fourth Circuit has explained and as it relates to several of the elements above,
there are two possible avenues of establishing Lanham Act liability. Specifically,
[f]or liability to arise under the false advertising provisions of the
Lanham Act, “the contested statement or representation must be
either false on its face or, although literally true, likely to mislead
and to confuse consumers given the merchandising context.” C.B.
Fleet Co. v. SmithKline Beecham Consumer Healthcare, L.P., 131
F.3d 430, 434 (4th Cir.1997). “Where the advertisement is literally
false, a violation may be established without evidence of consumer
deception.” Cashmere & Camel Hair Mfrs., 284 F.3d at 311. But if
“a plaintiff's theory of recovery is premised upon a claim of
implied falsehood, a plaintiff must demonstrate, by extrinsic
evidence, that the challenged [advertisements] tend to mislead or
confuse consumers.” Johnson & Johnson Merck Consumer Pharm.
Co. v. Smithkline Beecham Corp., 960 F.2d 294, 297 (2d
Cir.1992); see also Abbott Labs. v. Mead Johnson & Co., 971 F.2d
6, 14 (7th Cir.1992) (“[A] court may find on its own that a
statement is literally false, but, absent a literal falsehood, may find
that a statement is impliedly misleading only if presented with
evidence of actual consumer deception.”).
This distinction is significant here because Trex has not produced any evidence of actual
consumer deception. Accordingly, at least to show a likelihood of success on the merits at this
stage, Trex must rely on literal falsity. To be literally false, though, a statement must be both
“unambiguous” and “false.” Id.; see also Scotts Co. v. United Indus. Corp., 315 F.3d 264, 275–
76 (4th Cir. 2002). Literally false statements also include the sub-category of statements that are
literally “false by necessary implication,” meaning that “considering the advertisement in its
entirety, the audience would recognize the claim as readily as if it had been explicitly stated.”
Scotts Co., 315 F.3d at 274. Put differently, a claim of literal falsity by necessary implication is
viable where the plaintiff’s asserted conclusion “necessarily flowed from the ad’s statements.”
Design Resources, Inc. v. Leather Indus. of Am., 789 F.3d 495, 503 (4th Cir. 2015).
The only non-puffery statements remaining as the basis for a potential claim are the 2-to1 statements, such as “TimberTech Is a Preferred Choice 2-to-1 Over the Competition.” AZEK
argues that the statement is ambiguous, and the court is constrained to agree. In particular, even
assuming that the statement refers to sales volume, we do not know who “the competition” is.
That term is ambiguous. Here, Trex maintains that “the competition” necessarily means all of
AZEK’s competitors in the alternative wood decking industry, and thus that the statement is
false. Clearly, if the statement “the competition” refers just to Trex, the statement is false.
But if “the competition” refers to only some of the minor players in the market, then the
statement is true. That is, TimberTech’s sales volume is, in fact, more than twice the amount of
several a number of minor competitors in the alternative wood decking market. While this is a
strained reading of the statement, and perhaps even an unlikely interpretation, it is also
technically true. Although the court can certainly see a valid argument that the statement is
misleading or confusing to consumers—and indeed, it may be that Trex will be able to show that
the statement is misleading, the court cannot find, as a matter of law, that the statement is
literally false. In short, the ambiguity precludes a finding of literal falsity.
Because this statement is not literally false, and because no evidence has been presented
that any consumer was actually misled, Trex has failed to make a “clear showing” that it would
be likely to succeed on the merits. Thus, it is unnecessary to reach the remaining elements of the
Lanham Act claim or to further address the Winter requirements for granting injunctive relief.
The court will deny the motion for preliminary injunction.
For the foregoing reasons, the motion to dismiss will be granted in part and denied in
part, and the motion for preliminary injunction will be denied. An appropriate order will issue.
Entered: August 1, 2017.
/s/ Elizabeth K. Dillon
Elizabeth K. Dillon
United States District Judge
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