Lanham Act Dust Up Over Vacuum Cleaner Claims Clarifies Literally False Standard

A federal district court in Massachusetts was recently sucked into a false advertising dispute between manufacturers of competing vacuums and steam cleaners over alleged violations of Section 43(a) of the Lanham Act. The plaintiff, Euro-Pro Operating LLC ("Euro-Pro"), which manufactures the popular "Shark" steam mop and "Shark Navigator" vacuum, filed suit against the defendant, TTI Floor Care North America ("TTI"), alleging false advertising and unfair competition in connection with certain superiority claims made in infomercials for TTI's "TwinTank" steam mop and "WindTunnel" vacuum cleaner.

Euro-Pro moved for a preliminary injunction, alleging that the infomercial contained false claims based on rigged, deceptive product demonstrations (e.g., comparing the stain-removing ability of a "revved up" TwinTank to a Shark product that was not properly warmed up prior to use). Euro-Pro argued that the claims and demonstrations were literally false because objective tests with measurable results proved them false. In denying the motion, the district court clarified how the literal falsity test applies to contested claims and product demonstrations.

Lanham Act Background

Section 43(a) gives competitors a private right of action to challenge false advertising claims and other forms of unfair competition. It provides that:

Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, 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 or is likely to be damaged by such act.

15 U.S.C § 1125(a)(1)(B).

A Lanham Act false advertising claim has five elements: (1) a false or misleading claim in a commercial advertisement about defendant's or another's product; (2) materiality, such that the misrepresentation is likely to influence a consumer's purchasing decision; (3) that the misrepresentation actually deceives or has the tendency to deceive a substantial segment of the audience; (4) that the defendant placed the false or misleading statement in interstate commerce; and (5) injury to the...