United Industries Corporation v. The Clorox Company
Filed: April 13, 1998 (1998)
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Rule of Law:
An advertising claim that is literally true but potentially misleading due to its visual context is not actionable under the Lanham Act without extrinsic evidence, such as a consumer survey, proving that a significant portion of the audience was actually deceived.
Facts:
- Clorox Company manufactures and sells Combat, the leading brand of roach bait insecticide.
- United Industries Corporation, a competitor, manufactures and sells the Maxattrax brand of roach bait.
- United Industries created and aired a 15-second television commercial for Maxattrax titled 'Side by Side'.
- The commercial visually depicts the Maxattrax box in a pristine, roach-free kitchen on one side of a split screen.
- On the other side, a generic 'Roach Bait' box, resembling Clorox's Combat packaging, is shown in a chaotic, roach-infested kitchen.
- An announcer's voiceover asks, 'Can you guess which bait kills roaches in 24 hours?' and later states, 'To kill roaches in 24 hours, it’s hot-shot Maxattrax.'
- The statement 'Based on lab tests' appears in small print on the screen during the commercial.
- Scientific testing by both parties confirmed that Maxattrax does kill roaches within 24 hours of contact.
Procedural Posture:
- United Industries Corporation filed a suit against The Clorox Company in the U.S. District Court for the Eastern District of Missouri, seeking a declaratory judgment.
- Clorox filed an amended counterclaim against United Industries, alleging its television commercial constituted false advertising under the Lanham Act.
- Clorox moved for a preliminary injunction to stop the broadcast of the commercial.
- The district court (a court of first instance) held a two-day hearing and denied Clorox's motion for a preliminary injunction.
- Clorox, as the appellant, appealed the district court's denial of the preliminary injunction to the U.S. Court of Appeals for the Eighth Circuit.
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Issue:
Does a television commercial that uses visual hyperbole to compare competing roach baits, while making a literally true audio claim, constitute literally false or implicitly misleading advertising under the Lanham Act sufficient to warrant a preliminary injunction when no evidence of consumer deception is presented?
Opinions:
Majority - Wollman, Circuit Judge
No. The commercial does not constitute literally false or implicitly misleading advertising sufficient to warrant a preliminary injunction because the core claim is literally true and there is no evidence of consumer deception. To obtain a preliminary injunction, a party must show a probability of success on the merits. A Lanham Act claim can be based on either a literally false statement or a literally true but misleading statement. Here, the court found no clear error in the district court's determination that the commercial was not literally false. The explicit audio and text claim that Maxattrax 'kills roaches in 24 hours' was factually supported by lab tests. The visual depictions of a clean kitchen versus a chaotic, roach-infested one were deemed too ambiguous and suggestive to constitute a literally false claim that Maxattrax controls a home infestation within 24 hours. For a claim that is not literally false but merely misleading, the plaintiff must prove that the ad actually deceived a substantial segment of the audience, typically through consumer surveys. Because Clorox presented no evidence of consumer deception, it failed to demonstrate a likelihood of success on its claim that the commercial was implicitly misleading. Therefore, the denial of the preliminary injunction was proper.
Analysis:
This decision reinforces the high evidentiary bar for proving a false advertising claim under the Lanham Act, particularly for claims that are not literally false. It emphasizes the crucial distinction between literal falsity, which a judge can determine by analyzing the ad's explicit claims, and implicit falsity, which requires extrinsic evidence of how consumers actually perceive the message. The ruling cautions plaintiffs that dramatic or hyperbolic visual imagery in an advertisement may not be actionable as literally false if the core verbal claim is substantiated. This forces litigants challenging such ads to invest in expensive consumer research to prove the ad's misleading impact, thereby protecting advertisers who engage in 'puffery' or ambiguous visual storytelling.
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