United States District Court, D. Massachusetts
ORDER ON MOTIONS FOR SUMMARY JUDGMENT
ALLISON D. BURROUGHS DISTRICT JUDGE.
parties, SharkNinja Operating LLC (“SharkNinja”),
and Dyson Inc. and Dyson LTD (together, “Dyson”),
are competitors in the household vacuum market. In this
action, each accuses the other of disseminating false and
misleading advertising about their respective vacuum
products, in violation of the federal Lanham Act, 15 U.S.C.
§ 1125(a), and Massachusetts state law.
2013, Dyson launched an advertising campaign claiming that
certain of its vacuums had “twice the suction of any
other vacuum” on the market. In July 2014, however,
SharkNinja released a vacuum called the Shark Powered
Lift-Away (the “Shark Lift-Away”). SharkNinja
claims that Dyson’s “twice the suction”
advertising claims became literally false no later than July
2014, when the Shark Lift-Away was introduced, because Dyson
vacuums did not, in fact, have “twice the
suction” of the Shark Lift-Away. In its First Amended
Complaint, [ECF No. 40] (“Compl.”), SharkNinja
asserts claims for false advertising in violation of the
Lanham Act, 15 U.S.C. § 1125(a)(1)(B) (Count I);
deceptive trade practices in violation of Mass. Gen. Laws,
ch. 93A (Count II); and false advertising in violation of
Mass. Gen. Laws, ch. 266, § 91 (Count III).
filed counterclaims [ECF No. 59] for false advertising in
violation of the Lanham Act (Count I), and violations of
Mass. Gen. Laws, ch. 93A (Count II), which arise out of
SharkNinja’s advertising campaign for its Shark Rocket
upright stick vacuum (the “Shark Rocket”).
Specifically, the packaging for the Shark Rocket claimed that
the product “deep cleans carpets better vs. a Full Size
Dyson.” Dyson, however, alleges that the Shark Rocket
does not clean carpets better than every full-sized Dyson
vacuum, and that SharkNinja’s advertising claims are
therefore false and misleading.
the Court are the parties’ cross-motions for summary
judgment. For the reasons set forth in this Memorandum and
Order, SharkNinja’s Motion for Summary Judgment [ECF
No. 171] is ALLOWED IN PART and DENIED IN
PART. Dyson’s Motion for Summary Judgment [ECF No.
169] is DENIED.
Dyson’s campaign: “Twice the
2013, Dyson launched its “twice the suction”
(“TTS”) advertising claims in connection with its
DC41 vacuum cleaner. Dyson’s advertisements, which
appeared in print, television, and internet advertising, as
well as on point of purchase displays in some retail
locations, and on packaging for the DC41, claimed that the
DC41 had “twice the suction of any other vacuum.”
Subsequently, Dyson also included the TTS claim on
advertisements for its DC65 vacuum, which became available in
a limited release in January 2014, and nationwide in March
7, 2014, counsel for SharkNinja sent a letter to in-house
counsel at Dyson, advising him that in July 2014, SharkNinja
intended to launch a new vacuum, and that the performance
capabilities of this new vacuum would render Dyson’s
TTS claim literally false. According to SharkNinja’s
counsel, testing on the new Shark vacuum proved that the DC65
no longer had “twice the suction of any other
vacuum.” SharkNinja’s letter, however, did not
enclose any test results. The letter further stated that upon
launch of the new Shark vacuum, SharkNinja expected Dyson to
remove its TTS advertising claim from the market.
began selling its new vacuum, the Shark Lift-Away, on July 8,
2014. On July 9, 2014, SharkNinja’s general counsel
sent another letter to Dyson’s general counsel,
informing him that the Shark Lift-Away was officially on the
market, and that testing demonstrated that Dyson’s TTS
claim was literally false. Again, however, SharkNinja did not
enclose any test results with its letter, nor did it provide
Dyson with a sample Lift-Away vacuum product for testing
after the launch, Dyson purchased three Shark Lift-Away units
directly from SharkNinja’s website. Those vacuums were
delivered to Dyson’s U.S. offices on July 22, 2014, and
were subsequently sent to Dyson’s U.K. office for
internal testing. Dyson completed its internal testing in
early August, 2014. Dyson also purchased additional Lift-Away
vacuums, which it sent to a third-party testing facility.
Dyson received the results of those third-party tests in
early September, 2014. In addition, SharkNinja provided Dyson
with its own third-party test results on September 10, 2014,
which purportedly showed that the DC65 and the DC41 did not
have “twice the suction” of the Shark Lift Away.
Thus, no later than early September, 2014, Dyson had received
both internal and third-party test results confirming that
the Shark Lift-Away had more than half the suction of the
DC65 and the DC41. Dyson now concedes, as a factual matter,
that the launch of the Shark Lift-Away rendered its TTS claim
literally false as of July 8, 2014.
parties dispute what happened over the next several months.
Dyson argues that once it realized the TTS claim had become
“stale, ” it took prompt, commercially reasonable
steps to remove that advertising claim from the marketplace.
SharkNinja, in contrast, contends that Dyson dragged its
feet. For example, Dyson did not begin “stickering
over” the TTS claim on product packaging in stores
until November 17, 2014. SharkNinja argues that as a result
of Dyson’s dilatory response, the false TTS claim
remained on the market until early 2015, and that it hindered
sales and market growth of SharkNinja’s Lift-Away
SharkNinja’s campaign: “Cleans Carpets Better vs.
a Full Size Dyson”
September 9, 2013, SharkNinja launched an upright stick
vacuum known as the “Rocket, ” which SharkNinja
marketed as a light-weight alternative to full-size upright
vacuums. SharkNinja sells the Rocket in a variety of ways,
including through television infomercials, via website sales,
and in retail stores.
some period of time, the product packaging box for the Rocket
vacuum contained a promotional statement claiming that the
Rocket “deep cleans carpets better vs. a full size
Dyson*”. The asterix corresponds to a qualifying
footnote, which stated “*Based on the Dyson DC40 ASTM
F608 (imbedded dirt removal on carpet).” Although the
“cleans carpets better vs. a full size Dyson*”
claim appeared on five out of the six box panels for the
Rocket vacuum, the footnote appeared only on one side panel,
at the very bottom, in tiny print.
argues that the disclaimer is too small and discreetly placed
for consumers to take notice of it, and that as a result,
SharkNinja’s claim that the Rocket “deep cleans
carpets better vs. a full size Dyson*” necessarily
communicates to consumers that the Rocket outperforms
every full-sized Dyson upright vacuum, and not just
the DC40. Dyson further alleges that this claim is
demonstrably false, because the Rocket did not clean carpets
better than all Dyson upright vacuums - specifically, the
DC65 and the Dyson Ball Multi-Floor performed better than the
False advertising ...