Antitrust Law Daily Wrap Up, ADVERTISING—D. Mass.: Attempt to enjoin Dyson’s “twice the suction” ad campaign may proceed, (May 14, 2015)

By Michael Menzhuber, J.D., LL.M.

A vacuum manufacturer’s action to enjoin a competitor from claiming that its product had “twice the suction” of other brands could proceed, according to the federal district court in Boston, despite contentions that the competitor had retired the claim from its advertising and had taken corrective action on retail displays and product packaging (Euro-Pro Operating LLC v. Dyson Inc., May 12, 2015, Burroughs, A.).

Euro-Pro Operating LLC alleged that competitor Dyson Inc. and Dyson LTD. had made, and was continuing to make, an advertising claim that the Dyson “Animal” vacuum had “twice the suction” of competing vacuums. Euro-Pro alleged that this advertising claim was false, material to consumers, and caused injury to Euro-Pro in the marketplace. It filed requests for injunctive relief.

Dyson argued that Euro-Pro’s requests for injunctive relief were moot and should be dismissed because: (1) the “twice the suction” advertising campaign had been discontinued; (2) the “twice the suction” claim had been removed from its print, television, website and other online advertising; and (3) it had retained a third-party vendor to remove the claim from all retail displays and product packaging.

In support of these assertions, Dyson argued that (1) Euro-Pro’s first amended complaint admitted that Dyson had retired the claim from its advertising and (2) a Declaration of its General Counsel stated that Dyson had voluntarily ceased the “twice the suction” advertising campaign and that it had taken corrective action with respect to retail displays and product packaging previously released in the marketplace.

After limiting its review to the facts alleged in Euro-Pro’s complaint, the court denied Dyson’s motion. It found that Euro Pro had conceded, in the complaint, that Dyson had removed the advertising claim from its website. However, the court also found that Dyson had ignored other portions of the complaint alleging that: (1) Dyson was continuing to make the “twice the suction” claim via other media; (2) Dyson had heavily promoted the advertising claim through the early part of 2015; and (3) the advertising claim, despite Dyson’s purported efforts to remove them, continued to appear in retail stores. Consequently, the court determined that Euro Pro alleged sufficient facts to suggest that Dyson’s “twice the suction” advertising campaign was still ongoing and denied Dyson’s motion to dismiss Euro-Pro’s requests for injunctive relief.

The case number is No. 14-cv-13720-ADB

Attorneys: Nicholas M. Depalma (Venable LLP), and Robert D. Carroll (Goodwin Procter LLP) for Euro-Pro Operating LLC. Gregg F. Locascio (Kirkland & Ellis LLP) for Dyson Inc.

Companies: Euro-Pro Operating LLC; Dyson Inc.

Cases: Advertising MassachusettsNews