15-Second Advertising Law Alert: Snow Job Gets Icy Reception

Ordering corrective advertising as part of a preliminary injunction is not a common remedy in Lanham Act false advertising cases. But it happened recently in Wisconsin.^*

Background

The parties compete in making snowplows to attach to trucks.

Defendant initiated an advertising campaign for the 2011-2012 snowplowing season, which runs from September through January. It involved videos on Defendant's websites, trade magazines, videos given to dealers, and use of Facebook and other social media.

Defendant's comparative ads primarily were based on its own tests of how well its plows and Plaintiff's "tripped." Basically, "tripping" is the ability of the plow or its lower edge to flip over an unseen hazard, such as a dislodged manhole cover or ice ledge. This mitigates damage to the plow and the driver.

One of the ads extolling Defendant's plows showed a driver with a bloody face; one showed a shattered windshield; another showed a physician comparing X-rays of a normal and fractured skull, with the name of Plaintiff's plow under the fractured one.

Plaintiff moved for a preliminary injunction with corrective advertising and introduced its own, more thorough tests.

By the time that motion was heard, some of Defendant's videos had been changed, but original versions remained on some of its websites and those that had been on Facebook had gone viral. The print ads had run their scheduled course but remained in waiting rooms.

Evidence at the preliminary injunction hearing showed that Defendant's ads had misstated its tests and those tests were not reliable substantiation for the claims.

Decision

The motion was granted and corrective advertising was ordered. Among other things, the court found that the ads were likely to be found literally false and, therefore, the injuries they caused were legally presumed to be irreparable.

Corrective ads were ordered due to "the saliency of the safety-related message…and the misleading nature of that campaign."