Antitrust Law Daily Wrap Up, ADVERTISING—N.D. Ill.: Dyson’s past harm insufficient to grant preliminary injunction against competitor, (Mar 12, 2015)

By Greg Hammond, J.D.

Vacuum designer and manufacturer Dyson, Inc. was not entitled to preliminary injunction against competitor Euro-Pro Operating LLC for allegedly misrepresenting, concealing, or omitting material facts in its advertisements. In denying Dyson’s motion for preliminary injunction, the federal district court in Chicago determined that Euro-Pro cured any defects in its advertising in August 2014, and any harm occurring prior to that date is insufficient to support injunctive relief (Dyson, Inc. v. Euro-Pro Operating LLC, March 10, 2015, Gottschall, J.).

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, and Dyson filed Lanham Act and Illinois Deceptive Trade Practices Act claims against Euro-Pro in the federal district court in Chicago.

Dyson moved for preliminary injunction in the Chicago action, seeking to enjoin Euro-Pro from continuing with its advertising campaign and to require Euro-Pro to disseminate corrective packaging to remove its disputed performance claim: “MORE SUCTION & CLEANS CARPET BETTER vs. Dyson’s Best Vacuum Proven by Independent Lab Testing.”

The court first determined that it would only consider third-party testing, not Dyson’s and Euro-Pro’s internal testing, given the inherent bias flowing from the parties’ motivation to have their respective vacuums outperform the other’s. Dyson’s tests were conducted by IBR Laboratories, and Euro-Pro’s tests were performed by Intertek Laboratories.

Second, the court decided that any third-party tests that fail to meet the 90 percent confidence level will be excluded as not compliant with American Society of Testing and Materials (ASTM) standards. Dyson’s arguments that Intertek erred when it used the middle setting instead of the upper setting when testing frieze did not sufficiently establish that Dyson was likely to prevail on the merits. The court reasoned that although Euro-Pro’s written instructions conflicted with its oral directions to use the middle setting for all four carpet types, Euro-Pro’s updated December 2014 instructions cured any defects, and claims of past harm are insufficient to support preliminary injunctive relief. Dyson therefore lacked sufficient likelihood of success on the merits, and the public interest and balance of harms did not support a grant of injunctive relief.

Lastly, the court noted that Euro-Pro did not have lab testing results prior to August 12, 2014. Consequently, Dyson could be entitled to damages for the period of time in which Euro-Pro’s claim that independent laboratory testing supported its cleaning superiority claim was false. Nevertheless, Dyson was still not entitled to injunctive relief for any wrong that occurred in the past. The motion for preliminary injunction was therefore denied.

The case number is 14 C 9442.

Attorneys: Gregg F. LoCascio (Kirkland & Ellis LLP) for Dyson, Inc. Christopher Scott Crook (Venable LLP) for Euro-Pro Operating LLC and Euro-Pro Sales Co.

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

Cases: Advertising StateUnfairTradePractices IllinoisNews