Antitrust Law Daily Wrap Up, ADVERTISING—C.D. Cal.: NUTRIBULLET beats NUTRI NINJA PRO in battle over false statements, (Aug 26, 2014)

By Greg Hammond, J.D.

Euro-Pro Operating LLC, maker of the “NINJA” line of blenders, is required to change its NUTRI NINJA PRO packaging and advertising to remove false statements made about the competing “NUTRIBULLET” line of blender products. In granting Homeland Housewares, LLC’s and Nutribullet, LLC’s motion for preliminary injunction, the federal district court in Los Angeles determined that the NUTRI NINJA packaging makes literally false statements about NUTRIBULLET products (Homeland Housewares, LLC v. Euro-Pro Operating LLC, August 22, 2014, Pregerson, D.).

Background. Homeland and Euro-Pro compete in the home blender market. Homeland sells the NUTRIBULLET line, which includes the NUTRIBULLET CLASSIC, the NUTRIBULLET SPORT, and the NUTRIBULLET PRO 900 SERIES. Euro-Pro sells the NINJA line of blenders, including the NUTRI NINJA PRO, which is frequently sold in close proximity to the NUTRIBULLET line of blenders.

The packaging of the NUTRI NINJA PRO contains a comparison chart titled “NUTRI NINJA vs. NUTRIBULLET,” which indicates that the NUTRI NINJA PRO operates at 900 Watts, produces 21,000 RPMs, has ice crushing capability, has pulse technology, has sip & seal lids, and fits in cupholders, but that “NUTRIBULLET” has none of those features. Consequently, Homeland and Nutribullet filed suit, alleging false advertising and trade dress infringement claims under section 43(a) of the Lanham Act. Homeland and Nutribullet moved for preliminary injunction.

When seeking a preliminary injunction, plaintiffs must demonstrate (1) they are likely to succeed on the merits; (2) they are likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in their favor; and (4) a preliminary injunction is in the public interest.

Likelihood of success on the merits. According to the court, the threshold issue in determining whether Homeland and Nutribullet demonstrated a likelihood of success on the merits was whether the NUTRI NINJA comparison chart referred to each of Homeland’s NUTRIBULLET-branded blenders, or only the NUTRIBULLET CLASSIC. The court concluded that the chart referred to all three NUTRIBULLET-branded blenders, as: (1) the NUTRIBULLET mark is the dominant feature on all three of the products’ packaging; (2) consumers viewing the products would naturally consider all three products to be a “NUTRIBULLET”; and (3) the chart only refers to “NUTRIBULLET” without any disclaimer, differentiation, or other clarification. Consequently, the court found that the statements that the NUTRIBULLET products do not have a 900 Watt motor, do not produce 21,000 RPMs, and do not have “sip and seal” functionality, are literally false, demonstrating a likelihood that Homeland and Nutribullet would succeed on the merits of their false advertising claim.

Irreparable harm. Homeland also demonstrated a likelihood of irreparable harm if a preliminary injunction is not granted. Specifically, it determined that Euro-Pro made materially false statements regarding the NUTRIBULLET PRO and NUTRIBULLET SPORT models, which amounted to an assertion that Homeland manufactures inferior products, and that Homeland is lying about its products’ features and capabilities. This, according to the court, has the tendency to diminish Homeland’s goodwill among customers.

Balance of equities. The balance of equities also fell in Homeland’s and Nutribullet’s favor, as Homeland would “clearly suffer hardship” without injunction because Euro-Pro would be allowed to continue its dissemination of false claims regarding the NUTRIBULLET products. In addition, Euro-Pro would not suffer undue hardship if injunction was granted, as “there is no harm to a defendant from an injunction which prevents continuing dissemination of false statements.”

Public interest. “There is a strong public interest in preventing false advertising of products in the marketplace,” the court noted. Because proof of consumer confusion is not required when statements are literally false, the court concluded that preliminary injunction would serve the public interest in this case. Consequently, Euro-Pro was given 120 days to remove the 900 watts, 21,000 RPMs, and “sip & seal” statements from its NUTRI NINJA PRO packaging, advertisements, and commercials.

Trade dress infringement. The motion for preliminary injunction with regard to trade dress infringement was denied, as the trade dress for the NUTRIBULLET CLASSIC was found to be “not inherently distinctive.” Consequently, Homeland and Nutribullet were unable to demonstrate a likelihood of success on the merits of their trade dress infringement claim.

The case number is 14-03954 DDP (MANx).

Attorneys: Dylan C. Dang (Trojan Law Offices) for Homeland Housewares LLC and Nutribullet, LLC. Kenneth L. Wilton (Seyfarth Shaw LLP) for Euro-Pro Operating LLC.

Companies: Homeland Housewares LLC; Nutribullet, LLC; Euro-Pro Operating LLC

Cases: Advertising CaliforniaNews