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Spruce Environmental Technologies, Inc. v. Festa Radon Technologies, Co.

United States District Court, D. Massachusetts

July 2, 2015

SPRUCE ENVIRONMENTAL TECHNOLOGIES, INC., Plaintiff,
v.
FESTA RADON TECHNOLOGIES, CO., Defendant.

MEMORANDUM & ORDER

Nathaniel M. Gorton United States District Judge

This case arises from an advertising campaign by defendant Festa Radon Technologies, Co. (“Festa”) which plaintiff Spruce Environmental Technologies, Inc. (“Spruce”) alleges contains literally false and misleading statements about Spruce’s products. Spruce and Festa are direct competitors in the radon mitigation industry, a market that provides products for testing and reducing indoor levels of the colorless and odorless radioactive gas radon.

Pending before the Court is plaintiff’s motion for a preliminary injunction to enjoin Festa from continuing its “Dare to Compare” advertising campaign and to publish corrective advertising. For the reasons that follow, the motion will be allowed, in part, and denied, in part.

I. Background

A. Parties

Spruce is a Massachusetts corporation in the business of manufacturing and selling radon mitigation devices including a line of radon mitigation fans under the trade name RadonAway®.

Festa is a Pennsylvania corporation also in the business of manufacturing and supplying radon mitigation devices. It entered the radon mitigation fan market in 1999 when that portion of the industry was dominated by Spruce and one other company. Festa’s line of radon mitigation fans are marketed and sold under the name AMG.

B. The Subject Advertising

In or about February, 2015, Festa began marketing its products through a catalog containing a comparison of radon mitigation fans by Festa and Spruce. That section, which spans several pages, is titled “*Dare to Compare* U.S. versus THEM” and provides photographs and statements juxtaposing the two lines of products. For example, Festa compares a “7 year old AMG Fan vs. [a] 5 year old fan from our competitor” and provides a photograph of a gray Festa fan next to a bright yellow Spruce fan.

The next few pages list a series of differences between the products along with side-by-side photographs of the products accompanying those claims. The comparisons are as follows:

US (referring to Festa) versus THEM (referring to Spruce)

1) “Secure Lock Lever Nuts”

“Inexpensive Wirenuts”

2) “Solid lid with four screws to ensure a watertight fit. Comes with 2 extra in case you drop one”

“Molded Plastic lid secured with only two screws”

3) “Factory Sealed Motor Wire”

“Motor wire caulked to seal”

4) “Solid motor lead wires”

“Stranded motor lead wires”

5) “Factory Stamped, Dated, & Serialized”

“Generic-No Manufacture Info”

6) “Terminal Box With (4) Screw Holes With Brass Inserts To Prevent Stripping”

“Terminal Box With (2) Screw Holes. Screw Directly Into Plastic”

7) “Motor Mounted With (4) Mounting Screws. Allows For Better Stability And Quiet, Vibration Free Operation”

“Motor Mounted With only (2) screws”

8) “Capacitor With Factory Installed Lead Wires For Direct Connect”

“Capacitor Requires Wires Installed during assembly”

9) “Watertight Pivoting Grommet”

“Plastic Sleeve Requiring Caulking”

C. Procedural History

Plaintiff filed the instant lawsuit and motion for preliminary injunction in April, 2015. The complaint asserts claims for 1) violation of the Lanham Act, 15 U.S.C. § 1125(a), 2) violation of M.G.L. c. 93A, 3) violation of M.G.L. c. 266, § 91 and 4) commercial disparagement.

Defendant filed an amended answer and counterclaims for 1) violation of the Lanham Act, 15 U.S.C. ยง 1125(a), 2) violation of M.G.L. c. 93A and 3) commercial disparagement and responded to the pending ...


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