False advertising case stomped by ambiguity of “original”

Not Dead Yet Manufacturing Inc. v. Pride Solutions, LLC, 2017
WL 4150720, No. 13 C 3418 (N.D. Ill. Sept. 19, 2017)
Patent case with a side order of false advertising.  NDY owns patents concerning ‘quick connect
and disconnect’ apparatuses for the assembly of devices known as ‘stalk
stompers.‘ A stalk stomper “attaches to the front of a combine or tractor and
flattens cornstalks after they have been cut, thereby protecting the tires of
the combine or tractor from damage caused by the sharp remains of the stalks.”
The ‘quick connect and disconnect apparatus’ enabled faster, easier, tool-free
attachment and removal of stalk stompers.
NDY challenged Pride’s advertising for its products as ‘The
Original Quick Disconnect Stalk Stomper‘ even though Pride knew that NDY and
another manufacturer had sold quick-disconnect stalk stompers before the the
Pride QD1 was commercially available. Pride also began a campaign for its QD2 stating
‘This design change replaces a major change we introduced three years ago with
the earliest quick disconnect.’  NDY sued
under the Lanham Act, the Illinois Uniform Deceptive Trade Practices Act, and
the Illinois Consumer Fraud and Deceptive Business Practices Act.
Pride argued that all of their stalk stomper products,
regardless of the products’ individual features, were marketed as ‘THE
ORIGINAL’ because Pride was the first company to introduce stalk stompers,
decades ago, and was the first to refer to their stalk stomper products using
the term ‘quick disconnect,’ whereas NDY used ‘quick release.’ Thus, the ‘The
Original’ was not literally false, and the QD2 ad just said that the QD1 was Pride’s earliest quick-disconnect
product. [This last seems like an implausible reading of that claim.]
The court concluded that ‘The Original Quick Disconnect
Stalk Stomper’ was ambiguous. On its face, the ad didn’t indicate that whether
the phrase means that the QD1 was the first product to contain a quick
connect-disconnect feature, whether it was the first product to be marketed as
a ‘quick disconnect‘ device, or whether the product was just one in a line of
stalk stompers branded as ‘The Original.’ NDY failed to provide evidence of
consumer confusion, so the Lanham Act claim failed.

Interestingly, the court noted that the ICFA and IUDTPA didn’t
have a falsity/misleadingness divide: likely deception or capacity to deceive
was sufficient, without evidence of consumer perception.  However, the claims still failed because NDY
didn’t show it was likely to suffer or actually suffered any harm from the
alleged falsity. There was no evidence that the ads would confuse consumers
about whether the QD1 was the first stalk stomper product to incorporate a
quick connect-disconnect feature, “let alone evidence demonstrating that any
such confusion would have an adverse effect on Plaintiff’s sales or otherwise
cause harm.”  NDY argued that it didn’t
need to prove actual damages because it sought only equitable relief, including
redress for unjust enrichment. But there was no evidence that Pride was
unjustly enriched by its claim.  

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