Professional Documents
Culture Documents
Published
Published
Published
No. 14-1990
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro.
William L. Osteen,
Jr., Chief District Judge. (1:10-cv-00157-WO-LPA)
Argued:
Decided:
ARGUED:
John Raymond Neeleman, LANE POWELL, PC, Seattle,
Washington, for Appellant.
William Andrew Copenhaver, WOMBLE
CARLYLE SANDRIDGE & RICE, LLP, Winston-Salem, North Carolina;
Richard Dominick Milone, Jr., KELLEY DRYE & WARREN LLP,
Washington, D.C., for Appellees.
ON BRIEF: Kristin Beneski,
LANE POWELL, PC, Seattle, Washington, for Appellant.
Cameron
Argetsinger, KELLEY DRYE & WARREN LLP, Washington, D.C., for
Appellees Leather Industries of America and Dr. Nicholas J.
Cory; Brent F. Powell, WOMBLE CARLYLE SANDRIDGE & RICE, LLP,
Winston-Salem, North Carolina, for Appellees Ashley Furniture
Industries, Inc. and Todd Wanek.
district
courts
entry
of
summary
judgment
in
favor
of
Furniture
Industries,
Inc.
(Ashley),
on
DRIs
false
(the
Ashley
Ad),
as
well
as
two
statements
by
Dr.
affirm.
I.
A.
Appellee Ashley is the fifth largest furniture manufacturer
in the United States.
J.A. 116.
In addition to manufacturing
industry
trade
J.A. 986-88.
association,
which
Appellee LIA is a
owns
the
Leather
He and his
products
leather
content
for
purposes
of
federally
to
furniture
manufacturers.
In
late
2006,
DRI
it
initially
NextLeather.
composed
of
leather.
Id.
called
Veneto
Appellants
61%
Br.
polyurethane,
and
at
22%
8.
later
renamed
as
NextLeather
is
poly/cotton,
and
17%
Id.
a furniture frame.
Appellants Br. at 8.
specify
that
products
containing
ground
or
shredded
Instead, Dr.
J.A. 261.
with
the
FTC
Guides.
DRI
viewed
its
product
as
preparation
for
the
Spring
High
Point
J.A. 1289-90.
Market
in
North
Carolina--an
sold
important,
samples
of
manufacturers.
annual
furniture
NextLeather
to
industry
event--DRI
leading
furniture
25
Market,
Ashley
placed
series
of
full-page
ads
According to
DRI, one of the ads--which ran in the March 12, March 31, and
April 30, 2007 issues--contained false statements about DRI and
NextLeather.
follows:
Know
What
You
Are
Buying[.]
REMEMBER
The
You Do!
July
2,
2007,
Furniture
Today
published
an
article
J.A. 86.
To
deception,
outright
fraud.
Its
not
J.A. 108.
article
(the
[n]ew
fabrics
now
Andrews
called
Article)
bonded
referred
leather,
to
which
have
This
composite
a
surface
J.A. 108.
J.A. 108.
Its
composite,
but
vinyl,
its
not
or
polyurethane
leather.
If
you
laminate
tar
and
or
feather
J.A. 108.
B.
In February 2010, DRI filed suit against Ashley, Todd Wanek
(Ashleys president and CEO), LIA, and Dr. Cory.
false
advertising
claims
under
the
Lanham
Act,
It asserted
15
U.S.C.
Washington law. 3
J.A. 161.
26.
DRI made the following arguments before the district court.
Regarding
the
Ashley
Ads
statement--that
[s]ome
upholstery
Ad
asserted
knew
that
that
the
ad
[a]ll
was
informed
referring
readers
to
DRI
of
the
and
its
J.A. 47.
It argued that
the ad was false because DRI was not marketing its product as
leather, but rather as bonded leather.
J.A. 47.
that
there
could
be
no
doubt
J.A. 50.
that
Dr.
DRI
Corys
50,
and
that
the
statement
was
false
because
DRI
was
Cory
had
advised,
DRI
to
label
the
product
as
bonded
leather.
Finally, DRI argued that the defendants statements damaged
DRIs actual and potential customer relationships.
J.A. 55.
J.A. 55.
DRI moved for partial summary judgment, and Ashley and LIA
cross-moved for summary judgment.
The district
(continued)
court
also
8
rejected
DRIs
arguments
in
Regarding the Ashley Ad, the district court held that DRI
failed to establish that the ad was false on either of the
grounds DRI presented.
the
leather.
message
that
DRI
was
selling
NextLeather
as
J.A.
J.A. 1780-81.
liability
with
respect
to
the
ad--that
the
ad
was
false
J.A. 1784.
As to
the
Gunin
article
with
single
customers
refusal
to
J.A. 1774.
court held that Dr. Cory--in stating that using the term bonded
leather
is
deceptive--was
giving
his
opinion
on
how
maintain
liability.
that
using
J.A. 1777.
such
term
would
result
in
legal
II.
We review de novo the district courts grant of summary
judgment,
inferences
viewing
the
therefrom
nonmoving party.
facts
in
the
and
light
drawing
most
all
reasonable
favorable
to
the
56(a).
[I]t
is
ultimately
burden
to
It
10
the
Fed. R. Civ.
nonmovants
LLC, 752 F.3d 364, 370 (4th Cir. 2014) (citation omitted).
III.
On
granting
appeal,
summary
DRI
argues
judgment
that
to
the
district
Ashley
and
court
LIA
erred
because
in
DRIs
evidence with respect to the Ashley Ad, the Gunin Article, and
the
Andrews
Article
was
sufficient
to
establish
false
11
element--whether
assertions
of
the
fact.
defendants
Because
made
we
find
false
or
that
DRI
misleading
failed
to
false
advertising
liability
to
arise,
the
contested
consumers
C.B.
given
Fleet
Co.
the
merchandising
v.
SmithKline
context.
Beecham
Id.
Consumer
Thus, the
First,
12
considering
would
the
advertisement
recognize
the
explicitly stated.
claim
in
as
its
entirety,
readily
as
if
the
it
audience
had
been
In
Scotts,
315
F.3d
at
274
(quoting
Novartis
Consumer
must
support
theory
of
implied
falsehood
The
with
of
consumer
confusion
must
account
for
the
Such
.
to
provide
the
required
falsity.
13
evidence
of
[implied]
In
addition
to
being
false,
the
statement
must
be
Intl,
Inc.,
227
F.3d
489,
496
(5th
Cir.
2000)
173
F.3d
marks omitted).
[are]
not
725,
731
(9th
Cir.
1999))
(internal
quotation
actionable
under
Id.
1125].
To
be
Distrib. Corp., 784 F.2d 674, 679 (5th Cir. 1986)) (internal
quotation
mark
omitted).
With
this
framework
in
mind,
we
failed
to
agree
substantiate
with
claim
the
that
district
the
court
Ashley
Ad
that
DRI
is
either
literally
argues
on
upholstery
appeal
that
the
ads
suppliers
are
using
statement--that
leather
scraps
that
[s]ome
are
mis-
implication.
It
argues
14
that
[s]ome
upholstery
DRI--as
supplying
NextLeather--specifically,
and
that
the
argues
that
the
ads
unmistakable
when
viewed
in
reference
the
to
broader
In particular,
NextLeather
context
in
is
which
At
marketed
not
NextLeather.
as
marketed
leather,
as
it
leather,
unmistakably
but
as
bonded
refers
to
leather
or
follow DRIs winding inquiry far outside the face of the ad,
which the concept of literal falsity by necessary implication
does not allow us to do.
that
the
ad
means
the
of
what
it
says,
an
liability,
holding
advertisement
falsity.
that
will
not
all
support
messages
implied
finding
of
by
an
literal
it
is
supported.
that
finding
of
literal
falsity
will
be
Id.
In other
false
advertising
claim
can,
however,
depend
on
the
outperforms
breakdown.
advertisement
any
leading
motor
oil
against
not
specifically
mention
its
viscosity
Though the
competitors,
differently,
implication
claim
could
of
stand
literal
where
falsity
the
Id. at 946.
by
contested
necessary
conclusion
leather
and
NextLeather
because
it
is
indisputable
leather].
consumers
broader
would
market
Appellants
have
Br.
understood
context
of
the
at
this
31.
DRI
implication
Ashley
Ad,
evidence
in
support:
(1)
another
article,
published
on
March
2007--between
the
to
Furniture
the
that
given
pointing
following
30,
urges
the
Today
first
and
31;
J.A.
1678;
(2)
survey
by
Ashleys
expert
witness
Appellants
Br.
at
32;
(3)
exchanges
between
making
this
argument,
DRI
asks
us
to
reach
entirely
outside the face of the ad and into the context surrounding the
ads
publication
to
necessarily implied.
uncover
false
message
it
argues
is
This
In so doing,
that
it
bonded
shows
that
leather,
NextLeather.
But
to
consumers
which,
understood
at
the
time
the
was
ad
to
be
about
synonymous
with
the
required
evidence
of
[implied]
Spring High Point Market between 2004 and 2013 what message they
thought the ad conveyed and to which specific suppliers they
thought the ad referred.
implied
or
suggested
to
be[,]
the
DRIs
claim
depends
on
consumer
supplier
J.A. 424.
confusion
of
the
Thus,
about
respect
to
Dr.
Corys
statement
in
the
Gunin
Article.
DRI
outright
fraud,
necessary implication.
J.A.
86--is
literally
false
by
juror would conclude that [Dr.] Cory was calling DRIs use of
the
term
bonded
fraudulent.
leather--not
leather--deceptive
and
Id.
is
deceptive
unambiguously
communicates
the
message
that using the unqualified term leather for products that are
not
leather
is
misleading.
Nothing
on
the
face
of
this
NextLeather
product
is
not
as
that
term
is
synthetic
leather-look
furniture
covering
product.
Appellants Br. at 8.
court
statement
that
Dr.
Corys
cannot
qualify
as
false
or
in
representation
the
of
Andrews
fact.
Article
As
was
false
discussed
above,
or
misleading
this
article
is
deceptive
because
it
does
not
represent
[the]
true
J.A. 108.
J.A. 108.
J.A. 1777.
Id. at 18.
21
by
think.
using,
explicitly
or
implicitly,
the
words
they
imply
knowledge
of
facts
which
lead
Id. at 18.
to
the
By this
pertinent
rule
are
to
our
analysis
decisions
than
rendered
in
the
the
Milkovich
Lanham
Act
Pizza
not
admit[ting]
of
22
Id.
An example of a type of
empirical
verification
that
at 678-79.
In the context of an article suggesting that a marketing
term is bound to confuse consumers, stating that the term is
deceptive
Unlike
is
stating
consumers,
merely
that
which
putting
the
term
that
point
has
been
shown
admit[]
of
might
different
to
way.
deceive
empirical
terms
representation
likely
of
effect
fact--false
on
or
consumers;
it
otherwise--and
is
is
not
thus
a
not
IV.
For the foregoing reasons, the judgment of the district
court is
AFFIRMED.
23