It’s an ex-Lanham Act case without evidence of materiality

Not Dead Yet Manufacturing Inc. v. Pride Solutions, LLC, 2018
WL 688324, No. 13 C 3418 (N.D. Ill. Feb. 2, 2018)
  The court reconsidered
its summary judgment decisions on plaintiff’s motion for reconsideration, but
left the false advertising result the same. 
The parties make “stalk stompers”—that is, “devices that attach to the
front of a combine or tractor to flatten cornstalks after they have been cut.”  The allegedly false statements at issue
concerned defendants’ ads claiming to have the “original” stalk stomper, when
in fact plaintiff introduced the innovation at issue (thus also bringing about
related patent claims).  Not Dead Yet
argued that literal falsity was a factual issue to be determined at trial, and
that the court should not have held that the challenged claims were at least
ambiguous and thus not literally false. Without evidence of actual consumer
confusion, the court granted summary judgment for defendants.
Summary judgment on a fact issue can still be appropriate if
the evidence wouldn’t allow a reasonable jury to return a verdict for the
nonmoving party on that issue.  Moreover,
“[t]he Seventh Circuit appears to recognize that a district court may make the
initial determination regarding a statement’s ambiguity and the need for
evidence of actual consumer confusion. See Schering-Plough Healthcare Prod.,
Inc. v. Schwarz Pharma, Inc., 586 F.3d 500, 513 (7th Cir. 2009) (“[A plaintiff]
cannot just intone ‘literal falsity’ and by doing so prove a violation of the
Lanham Act.”).”  [I’m teaching this case
tomorrow!] “Determining whether a statement is clear or ambiguous is the type
of exercise that courts routinely conduct,” and other cases have done so as a
matter of law.

Regardless—and contributing to continued uncertainty on exactly
what a matter of law/matter of fact is when interpreting advertising—the court
reaffirmed its prior result based on Not Dead Yet’s failure to show likely
injury because it failed to show that the “original” claim would have any
effect on consumers’ purchasing decisions. 

from Blogger

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