Friday, December 12, 2008

Toy Maker Gets Early Christmas Gift—Dismissal of Rival’s False Ad Suit

This posting was written by Jeffrey May, Editor of CCH Trade Regulation Reporter.

The federal district court in Seattle has given toy maker Rose Art Industries, Inc. an early Christmas gift. The court granted the toy maker’s motion for summary judgment in an action brought by rival PlastWood SRL, alleging that Rose Art engaged in false advertising in violation of Sec. 43(a) of the Lanham Act in the marketing of its Magnetix line of construction toy sets.

The Magnetix construction sets competed with PlastWood’s SuperMag construction toy sets. These toy sets are comprised of small plastic building blocks that are held together by magnetic force. Rose Art’s Magnetix toys were labeled as entertainment for ages 3 to 100.

According to PlastWood, Rose Art’s advertising and product packaging stated that a wide variety of structures could be built by assembling Magnetix blocks in certain described manners. PlastWood contends that at least three of those structures—a sphere/Ferris wheel, an airplane, and a skyscraper—could not be built and collapsed under their own weight. In addition, PlastWood contended that other structures could be built only be built by experts and not by the toys’ intended audience: children.

Literal Falsity Claims

PlastWood limited its theory for liability to a claim of literal falsity. It did not pursue a false advertisement claim based on misleading advertisement.

The court first rejected PlastWood’s argument that Rose Art’s advertising was literally false because children could not build the toys. The statements were not literally false simply because a three year old could not build some of the structures, the court stated.

PlastWood failed to cite any authority for the proposition that advertising structures that were hard to build was tantamount to a false advertising claim, especially considering the box said the product was intended for ages 3 to 100.

The court went on to say that PlastWood failed to establish any genuine issue of material fact in support of its assertion that the three structures could not be built as represented. The court decided that no reasonable jury could come to such a conclusion.

Expert Witness

Rose Art’s expert, a self-proclaimed independent contractor and “builder of construction toys,” using only the parts included in the Magnetix toy sets and without using any glue or other adhesive, was able to construct the three structures, the court stated.

PlastWood contended that Rose Art’s expert modified the structures while building them and that they were not identical to those depicted on the Magnetix toy box. However, there was no material difference between the expert's structures and what was depicted on the packaging, in the court’s view. Criticisms made by PlastWood’s expert were not sufficiently material to withstand summary judgment.

Rose Art’s Magnetix line is no longer on the market. Following a safety recall of certain Magnetix toys, Rose Art launched a new MagNext product line earlier in 2008.

The text of the December 5, 2008, decision in PlastWood SRL, et al., v, Rose Art Industries, Inc., Case No. C07-0458JLR, will appear in CCH Trade Regulation Reporter at 2008-2 Trade Cases ¶76,410 and in CCH Advertising Law Guide.

Another view of the decision appears on the Seattle Trademark Lawyer blog, published by Michael Adkins of Graham & Dunn. The blog has posted the full text of the decision. It appears here.

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