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15-Second Advertising Law Alert: Refusal to Enjoin Steamy Ads Based on "Likely Implied" Jury Findings

Date: May 10, 2011

There are times when it is not clear what the fact-finding jury has found, and these unusual cases often create dilemmas. In a recent advertising case, the judge decided that there were enough "likely implied" jury findings to deny the Plaintiff a remedy, despite Plaintiff's having received a verdict in its favor.*

BACKGROUND

The competing parties both market "steam" home clothes driers. Plaintiff alleged that Defendant's product did not use "true steam," for reasons too technical for this space.

Plaintiff sought more than $80 million in damages under the Lanham and Illinois Consumer Fraud and Deceptive Practices Acts. It also sought a remedy under the state Uniform Deceptive Trade Practices Act ("IUDTPA"), which provides only injunctive relief. Basically, Plaintiff made the same arguments for relief under all acts.

Although Plaintiff alleged that the challenged "steam" claims were literally false, it also introduced a consumer survey that purportedly showed consumer deception arising from the "steam" references in one ad. That ad had been discontinued.

The jury returned general (no explanation) verdicts in favor of the Defendant under the first two statutes. However, it also returned such a verdict for Plaintiff under the IUDTPA, which provides that a court "may" grant an injunction.

Based on this, Plaintiff moved to enjoin Defendant permanently from using the word "steam" to describe any of Defendant's driers or to require Defendant to describe its process when it mentioned "steam."

DECISION

Concluding that it had discretion to deny the motion under IUDTPA, the court did so. It posited and weaved a complex net of implied and likely implied findings of the jury to make sense of the verdicts as a whole. A key one was that the jury must have "found" that Defendant used "steam" and, thus, Plaintiff could not have been harmed illegally by truth. To shore these implications up, the court, itself, found that Defendant's product used "steam."

For more information please contact Dick Leighton at 202-434-4220 or Leighton@khlaw.com.


* LG Electronics USA, Inc. v. Whirlpool Corporation, No. 08 C 242 (N.D. IL, May 5, 2011).