Antitrust Law Daily Wrap Up, ADVERTISING—NDIll: Bissell Liable for Falsely Advertising Vacuum Filtration Efficiency, (Jun 17, 2013)

By Jody Coultas, J.D.

Dyson, Inc. was entitled to partial summary judgment in its action against Bissell Homecare, Inc. for engaging in Lanham Act false advertising and Illinois Uniform Deceptive Trade Practices Act and Consumer Fraud and Deceptive Trade Practices Act violations with respect to certain representations about Bissell’s OS Vacuum Cleaners (Dyson, Inc. v. Bissell Homecare, Inc., June 14, 2013, Der-Yeghiayan, S.).

Dyson alleged that Bissell falsely advertised that its OS Vacuum Cleaners had a “HEPA Media Filter,” and that the filters or vacuum cleaners “capture[d] over 99.9%” of certain allergens. High Efficiency Particulate Air, or HEPA, filters or filtration systems traps at least 99.97% of dust and other particles that are 0.3 microns in size. Use of the term indicates that a product meets the 99.7% minimum efficiency standard. Dyson allegedly commissioned independent testing of the Bissell vacuums using industry standard tests and that the vacuums did not work as advertised.

To state a Lanham Act claim, Dyson needed to show Bissell made a false statement of fact in a commercial advertisement about its product; the statement actually deceived or has the tendency to deceive a substantial segment of its audience; the deception was material; Bissell caused its false statement to enter interstate commerce; and that Dyson was injured by the statement. The Illinois claims are generally resolved according to the Lanham Act standards.

Dyson presented sufficient evidence to prove that Bissell’s advertisements violated the Lanham Act and Illinois consumer protection statutes, according to the court. Bissell admitted that it did not test the OS Vacuum Cleaners, but tested the filters alone and based its advertising statements on those tests. However, the filter tests were done at a lesser air flow rate than would have been normal in the OS Vacuums Cleaners. Therefore, Bissell did not have adequate support for its advertising. Bissell’s argument that use of the word “Media” in the advertisements notified consumers that the statements related only to the filters and not the operation of the vacuum as a whole was rejected because the advertising related to the whole vacuum and not just the filter. Bissell admitted that filtration performance was material to a consumer’s decision to purchase a vacuum. Although Dyson did not seek lost profits, there was sufficient evidence to support a probable injury. The false advertisements would have made the less-expensive Bissell vacuums more appealing to consumers than the more-expensive Dyson vacuums that advertised the same high filtration efficiency rates. Therefore, Dyson clearly suffered a probable injury.

The case is No. 10 C 8126.

Attorneys: Ann Marie T Wahls (Kirkland & Ellis LLP) for Dyson, Inc. David Craig Hilliard (Pattishall, McAuliffe, Newbury, Hillard & Geraldson) for Bissell Homecare, Inc.

Companies: Dyson, Inc.; Bissell Homecare, Inc.

Cases: Advertising StateUnfairTradePractices IllinoisNews