Antitrust Law Daily Wrap Up, ADVERTISING—N.D. Ill.: “Animal” vs. “Shark” vacuum dispute continues in Chicago and Boston courts, (Dec 29, 2014)

By Jody Coultas, J.D.

The federal district court in Chicago declined to find a Lanham Act false advertising case filed by Dyson, Inc. against competitor Euro-Pro Operating LLC in the Chicago court duplicative of a similar case filed by Euro-Pro against Dyson in another court (Dyson, Inc. v. Euro-Pro Operating LLC, December 22, 2014, Gottschall, J.). Therefore, Euro-Pro’s motion to dismiss, transfer, or stay the Chicago case was denied.

Dyson advertised its DC65 “Animal” vacuum as having “twice the suction” of any other vacuum, including Euro-Pro’s “Shark Navigator Lift-Away,” while Euro-Pro advertised that its “Shark Navigator Lift Away” vacuum cleaned carpets better than Dyson’s more expensive DC65 model. Euro-Pro filed Lanham Act claims against Dyson in the federal district court in Boston, while Dyson filed Lanham Act claims against Euro-Pro in the Chicago court.

Euro-Pro sought to dismiss, transfer, or stay the Chicago court case in favor of the Boston case, while Dyson sought a preliminary injunction ordering Euro-Pro to stop claiming that the “Shark Navigator Lift Away” vacuum outperforms its DC65 vacuum. Dyson also filed an emergency motion for leave to file a sur-reply in support of the motion for a preliminary injunction.

A district court may dismiss a complaint as “duplicative of a parallel action already pending in another federal court” when the two matters contain substantially overlapping claims. Euro-Pro’s Lanham Act claims were based on Dyson’s claim that its vacuum had “twice the suction,” while Massachusetts’ Unfair Practices Act claims were based on allegedly false and deceptive representations regarding the suction capabilities of the Dyson “Animal” vacuum compared to those of the “Shark Powered Lift-Away” vacuum. Dyson’s complaint focused on Euro-Pro’s cleaning claims that violated the Lanham Act and the Illinois Deceptive Trade Practices Act.

The court found that the cases were not duplicative and denied Euro-Pro’s motion to dismiss. The parties’ arguments focused on whether the Chicago case was about cleaning and the Boston case about suction or whether both cases centered on cleaning and suction. The cases differed, though, because the Chicago case was based on Euro-Pro’s representations about the ability of its “Shark Rotator Powered Lift-Away” to clean versus the cleaning power of Dyson’s DC65 model. The Boston case focused on the accuracy of Dyson’s “twice the suction” claim and Dyson’s continued use of that claim. Also, the relief sought in the two cases differed. Dyson’s claims in the Chicago case were not compulsory counterclaims in the Boston case because Dyson’s contention that Euro-Pro’s claims about the cleaning ability of its vacuum were inaccurate did not arise out of Euro-Pro’s contention that Dyson inaccurately claimed that the DC65 has “twice the suction” of competing vacuums.

Justice would not be served by transferring the Chicago case to another district, according to the court. A district court may transfer any civil action to any other district or division where it might have been brought or to any district or division to which all parties have consented. Courts consider the plaintiff's choice of forum, where the material events took place, the relative ease of access to sources of proof, the convenience of the witnesses, and the convenience to the parties of litigating in the respective forums. Dyson chose to file suit in Chicago, and each side had testing evidence about the purported cleaning ability of the vacuums in its home forum.

The court found that an evidentiary hearing was necessary to resolve whether Dyson should be granted a preliminary injunction. Both parties accused the other of intentionally skewing various vacuum tests in multiple ways, and claimed that the other party’s advertising caused it irreparable harm by damaging its reputation and goodwill. Each side claimed that its tests were valid and attacked the tests conducted by its competitor on numerous grounds. The court noted that it would not tolerate further ad hominem attacks and that it expects the parties to present their positions in an orderly, succinct, and logical fashion.

The case is No. 14 C 9442.

Attorneys: Gregg F. LoCascio (Kirkland & Ellis LLP) for Dyson, Inc. Paul E. Veith (Sidley Austin LLP) for Euro-Pro Operating LLC, and Euro-Pro Sales Co.

Companies: Dyson, Inc.; Euro-Pro Operating LLC; Euro-Pro Sales Co.

Cases: Advertising IllinoisNews