Thursday, October 29, 2009

“Steam” Dryer Claims Could Be Lanham Act False Advertising

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

Allegations that Whirlpool’s advertisements for “steam” clothes dryers were literally false could not be rejected at the summary judgment stage of a Lanham Act false advertising case brought by competitor LG Electronics, the federal district court in Chicago has ruled.

LG alleged that the advertised dryers did not actually employ steam to remove odors and wrinkles from fabrics. Whirlpool's “steam” dryers worked by introducing a spray of cool water into a hot, spinning dryer drum where heat and moving air speeded evaporation of moisture from the dampened clothes.

Whirlpool unsuccessfully contended that the advertised dryers satisfied the meaning of “steam” employed by Consumer Reports, other magazines, and other competitors. Whirlpool identified no binding precedent holding that the behavior of competitors was relevant to whether its own advertising claims were literally false. Evidence from Consumer Reports articles and the like was inadmissible on summary judgment to prove the truth of the matters asserted, according to the court.

Whirlpool did not respond to LG's contention that the advertising was literally false because it necessarily implied the unambiguous message that Whirlpool's dryers created and used steam whereas conventional dryers did not.

Disputed Definition of “Steam”

Whirlpool's expert testimony that its dryers met the definition of steam as “vapor arising from a heated surface” was not conclusive, given the existence of competing definitions.

Considering the context of the advertising claims—touting the use of steam as a new way to care for clothes—a finder of fact could conclude that Whirlpool necessarily implied the unambiguous message that Whirlpool’s dryers refreshed clothing by a process not previously available in Whirlpool’s non-steam dryers, the court found. Finally, Whirlpool failed to support its contention that the use of the word “steam” in an LG-owned patent for conventional dryers constituted an admission that “vapor arising from a heated surface” in Whirlpool's dryers constituted steam.

Implied Falsity—Consumer Survey

A consumer survey was admissible to support allegations that Whirlpool’s advertisements conveyed an implied message to consumers, the court held. The LG survey consultant had designed and supervised over 500 consumer surveys in the areas of trademark, trade dress, advertising perception, and advertising claim substantiation.

Whirlpool contended that the survey was unreliable because LG's expert ignored the results of open-ended questions, improperly based his opinion solely on the result of a closed-ended question at the end of the survey, and used a “control” commercial too different from the “test” commercial. Whirlpool’s criticism was held to address the weight of the study, rather than its admissibility. Evaluating technical deficiencies and awarding weight to this evidence was the province of the trier of fact.

Expert Testimony—Consumer Perception

A thermodynamics expert's testimony for LG on consumer perception as to the definition of steam was stricken because he had no expertise in consumer perception, according to the court. However, his testimony that Whirlpool “steam” dryers did not create thermodynamic steam was not stricken because Whirlpool's objections went to the weight of the testimony, and Whirlpool would be free to cross-examine him regarding his application of the definition of steam to Whirlpool’s steam dryers.

The deicision is LG Electronics U.S.A. v. Whirlpool Corp., CCH Advertising Law Guide ¶63,596.

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