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KELLER AND HECKMAN LLP
AD LAW ALERT
April 2007
RESPONSE TO HDTV CLAIMS MAY
EXPAND AD INJUNCTION RIGHTS
Comparative
advertising for
high-density television service was
preliminarily enjoined recently in a
trial court opinion that appears to
extend federal Lanham Act law on
literal falsity and presumption of
irreparable harm.1
BACKGROUND
Time Warner Cable, Inc. sued
DIRECTV, Inc. under Section 43(a)
of the Act and related state laws.
TWC is the second-largest provider
of analog and digital cable TV
service; DIRECTV is a major
provider of digital satellite service.
The ads at issue included two
television commercials, one featuring
William Shatner in a Star Trek get-up
and the other Jessica Simpson in an
outfit reminiscent of her Dukes of
Hazard series. There also were
Internet ads featuring NFL stars Eli
Manning and Kevin Dyson, as well
as one showing women swimming.
Important to understanding
the disputed advertising is the fact
that providers such as the parties
supply only bandwidth; they do not
affect HDTV screen resolution. The
picture quality potential from their HD
programming is the same.
ENJOINED CLAIMS
William Shatner stated that
“settling for cable would be illogical.”
Jessica Simpson stated, “You’re just
not going to get the best picture out
of some fancy big screen TV without
DIRECTV.” Both spots concluded
with a voice-over that said, “[F]or an
HD picture that can’t be beat, get
DIRECTV.”
Some Internet ads featured a
two-screen demonstration, one with
a clear picture labeled DIRECTV and
one with a very blurry picture labeled
OTHER TV.
Text following that
demo stated, “[I]f you’re hooking up
your high-definition TV to basic
cable, you’re not getting the best
picture on every channel.
For
unparalleled clarity, you need
DIRECTV HD.”2 Other Internet ads
included
text
stating
that
“DIRECTV’s picture beats cable.”
2
1
Time Warner Cable, Inc. v. DIRECTV, Inc.,
S.D.N.Y No. 06 Civ. 14245 (Feb. 5, 2007)
Defendant admitted that these were
exaggerations and defended them as
puffery – unsuccessfully.
LITERAL FALSITY
By showing that a challenged
claim is literally false, a plaintiff may
avoid the need to prove that the
claim is material to its audience.
That is, the court may enjoin the
claim without regard to its impact on
consumers.
Preliminary injunctions usually
must be supported by, among other
things, a showing that the plaintiff
likely will succeed at trial in proving
the need for a permanent injunction.
The court found the following
Shatner commercial claims to be
literally false within their context:
“[S]ettling for cable would be
illogical” and “for an HD picture that
can’t be beat, get DIRECTV.” Note
the first claim is ambiguous and the
second is a parity claim, not a
superiority claim.
Nonetheless, the court found
the combined statements to be a
literally false superiority claim, saying
only that, “For it to be illogical for a
consumer to ‘settle’ for cable’s HD
services, cable’s HD services must,
in some material respect, be inferior
to those of DIRECTV.”
The court also found the
following
Simpson
commercial
claims to be literally false: “You’re
just not going to get the best picture
out of some fancy big screen TV
without DIRECTV” and “for an HD
picture that can’t be beat, get
DIRECTV.”
The court found that the
claims, within the context of the
commercial, were for DIRECTV’s HD
programming and that they were a
literally false representation that the
best picture could be gotten only with
DIRECTV’s HD programming.
These findings appear to be
mere judicial inferences of what
consumers might take away, not a
literal reading of what they must take
away. Many courts would require a
consumer perception survey to
determine whether such inferences
were taken.
IRREPARABLE HARM
A party seeking a preliminary
injunction usually must show that it
will suffer irreparable harm without
the relief. In Lanham Act cases,
such harm need not always be
proved.
In advertising cases, the court
will presume such harm, if two
showings are made with respect to
the claim to be enjoined: (1) there is
a likelihood that it will be proved
literally false at trial, and (2) the
falsity
involves
an
express
comparison by name of the suing
competitor or its products or
services.
Significantly, none of the
challenged claims in this HDTV case
identified TWC or its services by
name. However, the court presumed
irreparable harm from the Shatner
and Simpson commercials.
The court relied heavily on a
case brought by the makers of
Johnson & Johnson Floss who
sought to enjoin advertising that
compared Listerine to floss.3 In that
case, which also slightly extended
the law, the advertising touted the
mouthwash as being “As Effective as
Floss” at certain functions. But the
ad did not expressly name any floss
product.
3
McNeil-PPC, Inc. v. Pfizer, Inc., 351
F.Supp.2d 226, 250 (S.D.N.Y. 2005).
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Under the effectiveness claim,
however, the ads photographically
compared a bottle of Listerine with a
floss dispenser that the court found
to be “similar to if not identical to”
J&J’s dispenser.
The court also credited
testimony that the J&J “brand really
is the floss category to many
consumers.” And, it gave great
weight to the fact that J&J was the
market leader in floss, with 40% or
more of the string floss category.
In this HDTV case, there was
no graphic representation of TWC or
any service that it provided. In fact,
the court noted that TWC served
“only” 19.5% of the national cable
market.
However, the court gave great
weight to the fact that TWC was the
primary cable provider in each
market in which it operated and a
direct competitor of DIRECTV in
each market where they both
appeared.
From this, the court concluded
that “the specific references to
‘cable’” in the DIRECTV ads “are, as
a practical matter, references to
TWC with respect to any market in
which both parties have a presence,
and TWC is entitled to the
presumption of irreparable harm….”
Thus, the presumption of
irreparable harm from comparative
advertising is expanded to include
no-name, no-image comparisons. ◙
For Further Information, Contact Dick Leighton:
202-434-4220 or
[email protected]
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