Claims in contracts aren’t “advertising or promotion”

Segerdahl Corp. v. American Litho, Inc., No. 17-cv-3015, 2019
WL 157924 (N.D. Ill. Jan. 10, 2019)
This opinion deals with Lanham Act/coordinate state law counterclaims
by American Litho against Segerdahl. The parties compete within the direct mail
service market, a subset of the printing and marketing industry. American Litho
challenged statements on Segerdahl’s website:
Our ability to handle your sampling
program from start to finish under one roof means greater security, better
quality and shorter turn-time.
We specialize in digital, web and
sheetfed offset printing-all housed within our single campus network to provide
a level of flexibility not found anywhere else.
Our integrated campus and
end-to-end capabilities allow us to easily maintain control of your most
intricate projects.
We are the only facility that can
execute your entire sampling program on one campus-providing greater security,
faster time to market, tighter quality and inventory control.
American Litho also challenged Segerdahl’s statements in its
contracts with three of its customers, agreeing to perform all printing
services in-house despite subcontracting portions of the work without their
customers’ knowledge.  The statements in
those contracts weren’t “commercial advertising or promotion.”  Statements to current customers aren’t “communicated
for promotional purposes.”
Website statements: These were puffery. American Litho argued
that Segerdahl’s website misled potential customers to believe that all
printing jobs are handled on-site, but the statements were either exaggerated or
so vague that they couldn’t be proven or disproven. American Litho focused on
the phrase “from start to finish under one roof,” but the entire statement
merely “brags on Segerdahl’s ‘ability’ to handle printing jobs that results in ‘greater
security, better quality and shorter-turn time.’” Other similar statements were
tied to claims about Segardahl’s generalized awesomeness. “Does American Litho
suppose that customers are comparing with all industry rivals to verify whether
Segerdahl truly offers ‘a level of flexibility not found anywhere else?’ The
Court is doubtful…. One would expect these types of subjective nonquantifiable
statements to be posted on a company’s website. That is the very purpose of
advertisement.” [Ugh. I liked it when the purpose of ads was to convey actual information.]
 Ultimately, these were “nonactionable
highly subjective claims.”

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