Intellectual Property Law

Western District Considers Literal Falsity of Marketing Video

By Michael Atkins

National Products, Inc., sued its competitor Gamber-Johnson, LLC, in the Western District for false advertising.

Both parties sell mounting systems for laptops in emergency vehicles.

Gamber-Johnson distributed a video touting the benefits of its system versus other mounting systems, including one developed by National Products. The video was narrated by David Long, a frequent speaker on airbag safety, ambulance driving, and other types of emergency-responder driving techniques. National Products selected Mr. Long because Mr. Long had sufficient name recognition in the industry to lend some additional credibility to Gamber-Johnson’s marketing project.

Interestingly, Mr. Long’s contribution to the video consisted only of reading off a teleprompter. He did not contribute to the content of the script or conduct any tests supporting the comparison analysis of the different mounting systems.

Gamber-Johnson moved on summary judgment to dismiss National Products’ claim, including on the basis that various statements in the video were not literally false. 

On March 16, Western District Judge James Robart granted the motion in part and denied it in part. The court’s description of the literal falsity element about Mr. Long’s “analysis” and “investigation” is of particular interest.  

In the video, Mr. Long represents that the video is the product of his “analysis” and “investigation.” He also states: “I have stripped down and analyzed comparable vehicle mounting systems from six manufacturers” and “we have examined a lot from safety and design to fasteners and attention to detail.”

The court found, however, that Mr. Long testified in his deposition that he was only a paid narrator and that he was hired to read the teleprompter; he was not asked to conduct an evaluation or investigation of the mounting equipment featured on the video. Gamber-Johnson’s vice president of marketing, Scott Zuelke, also testified that Mr. Long’s statement in the video that he had “stripped down and analyzed comparable vehicle mounting systems from six manufacturers” was literally false.

The court found that “Even in the face of Mr. Zuelke and Mr. Long’s testimony that the statement was false, Gamber-Johnson continues to assert that there is no genuine dispute that the statement was true. The court can find no support for this bald assertion. Regardless, at a minimum, the court finds there is a genuine issue of material fact as to the truth of Mr. Long’s statement regarding his own analysis and investigation of the various mounting systems.”

The case cite is National Products, Inc. v. Gamber-Johnson, 2010 WL 1005871, No. 08-0049 (W.D. Wash. March 16, 2010) (Robart, J.).

Full post as published by Seattle Trademark Lawyer on March 24, 2010 (boomark / email).