Thursday, March 26, 2009

Vacuum Cleaner Infomercial Could Be Misleading Ad Under Lanham Act

This posting was written by William Zale, Editor of CCH Advertising Law Guide.

Vacuum manufacturer Oreck's infomercial, showing that a Dyson vacuum cleaner could not reach under a piece of furniture, could be misleading in violation of the Lanham Act, the federal district court in New Orleans has ruled. As demonstrated by counsel at oral argument, a Dyson attachment, which allowed it easily to reach under furniture, had been removed from the vacuum during the infomercial.

Oreck's depiction of the Dyson without the attachment, coupled with statements that the Dyson could not clean under furniture, could cause a reasonable consumer to think that the Dyson was incapable of cleaning under furniture in any circumstance, when it clearly could if the consumer used the attachments provided with the product. There was a triable issue of fact as to whether the advertisement actually deceived consumers, the court concluded.


Oreck's argument that several of its advertising claims were puffery was rejected. While the word “bulky” standing alone might be puffery, the claim that a Dyson model was “too bulky to get under furniture” was specific, measurable, and capable of being proven false, the court found.

Oreck's infomercial claim that “no puff of dirt” was emitted when the bag was removed from one of its vacuums was verifiable. Similarly, Oreck did not engage in mere puffery by stating that emptying a Dyson “spread[s] dirt” and was “messy” and that washing the Dyson filters was “not very clean or sanitary” and a “dirty little secret.”

Whether the Dyson vacuum cleaner spread dirt when emptied according to Dyson's instructions and whether cleaning a Dyson filter required a user to come into contact with captured dust and dirt could be determined.

Finally, while no reasonable consumer would rely on the infomercial's description of the Dyson's weight as “backbreaking,” Oreck's claim that its XL Ultra 4120 weighed “only nine pounds” was verifiable, according to the court.

Prior Adjudications

Dyson's suit—based on a new Oreck advertising campaign—was not barred by res judicata or a settlement agreement in previous litigation between the parties, the court held. While many of the facts and issues were similar to the previous case, res judicata was inapplicable because the two actions were not based on the same nucleus of operative facts.

A previous infomercial featured a Hoover vacuum, and Dyson sued Oreck because that infomercial implied that all bagless vacuums were emptied in the same manner. By contrast, the “messy” vacuum depicted in the new infomercial was a Dyson. This specific attack on Dyson's vacuum was different in kind from the generic claim about bagless vacuums at issue in the earlier case and presented a more direct injury to Dyson. The parties' settlement agreement gave Oreck permission to continue making advertising claims it was making at the time of settlement only.

The March 4 opinion in Dyson, Inc. v. Oreck Corp. will be reported at CCH Advertising Law Guide ¶63,308.

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