Thursday, March 22, 2007

Disparagement of Cable Service’s HD Picture Was Likely False Advertising

This posting was written by Bill Zale, editor of CCH Advertising Law Guide.

Time Warner Cable (TWC) proved a likelihood of success on the merits of its Lanham Act Sec. 43 (a) false advertising claims that satellite television provider DIRECTV made literally false statements in television commercials and Internet advertisements disparaging the quality of cable high-definition (HD) television, the federal district court in New York City has ruled. The court granted a preliminary injunction barring DIRECTV from disseminating the commercials and Internet ads in any market served by TWC.

“The Best Picture”

In one of the television commercials, singer and actress Jessica Simpson stated that a viewer could not "get the best picture" without DIRECTV. This statement was likely to be proven literally false, the court determined, in light of the undisputed factual record establishing that DIRECTV and TWC provided HD pictures of equal quality.

Another commercial featured actor William Shatner, in the role of Star Trek Captain James T. Kirk, praising the "amazing picture quality of the DIRECTV HD" and asserting that "settling for cable would be illogical." A narrator then concluded: "[f]or an HD picture that can't be beat, get DIRECTV.”

Viewing the commercial as a whole, TWC met its burden of showing that the commercial focused on DIRECTV's HD programming and made the literally false statement that DIRECTV's HD programming was superior to that of TWC, according to the court.

Satellite HD “Beats Cable”

DIRECTV's Internet advertisements allegedly depicted DIRECTV's HD television service as clear and sharp; depicted "other TV" (defined by the Web site as "basic cable ") as unwatchably blurry, pixelated, and distorted; and claimed "DIRECTV's picture beats cable."

Contrary to DIRECTV's argument that its Internet ads constituted nonactionable puffery, TWC demonstrated a likelihood of success in proving that, in the relatively new world of HDTV equipment, new buyers might not have sufficient knowledge of the way in which HDTV sets operated to recognize as false DIRECTV's depiction of distorted cable TV images.

Part of the problem with the contested Internet advertisements was that nothing in the text or images suggested that the grossly distorted picture quality depicted in the advertisements was not characteristic of cable service, the court said.

The decision is Time Warner Cable, Inc v. DIRECTV, Inc., No. 06 Civ. 14245 (LTS)(MHD), filed February 5, 2007 (2007-1 TRADE CASES ¶75,636).

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