Intellectual Property Law

Ninth Circuit Reverses Dismissal of False Advertising Claim Over Wasp Larvae

By Michael Atkins

Spalding Laboratories, Inc., sued its competitor, Arizona Biological Control, Inc. (“Arbico”), for false advertising under the Lanham Act related to claims Arbico made about the developmental state of its wasps used for killing flies. The Central District of California granted Arbico’s motion for judgment against Spalding as a matter of law.

On Sept. 9, the Ninth Circuit reversed and remanded, finding that a jury could have found for Spalding. In doing so, the court got right to the point:

“The jury could have reasonably concluded that Arbico’s advertisements were literally false or that the advertisements confused or misled a significant portion of their target audience. For instance, Dr. Peterson testified that the number of emerged parasites would ‘definitely’ be lower than the number of larvae contained in a pupa, a fact that would support a finding of literal falsity if Arbico’s claims were found to refer to emerged insects. The jury also could have reasonably concluded that Spalding’s shipments of Fly Predators contained as many as 10,000 to 15,000 larvae. Had the jury drawn that conclusion, it could have found Arbico’s advertisements to be literally false even if larvae, not emerged insects, were the relevant unit of analysis. Finally, the jury was told that Spalding experienced a spike in consumer inquiries in response to Arbico’s advertisements and that many Spalding customers defected to Arbico. If the jury found this testimony to be credible, it could have concluded that a significant segment of Arbico’s audience was misled by the advertisements at issue. On this record, issuance of judgment as a matter of law was legally erroneous.”

Interestingly, the court also granted Spalding’s motion to reassign the case to a different judge upon remand. “Without determining whether the district court judge currently assigned would be able to proceed impartially, we conclude that reassignment is appropriate to preserve the appearance of justice.”

The case cite is Spalding Laboratories, Inc. v. Arizona Biological Control, Inc., 2009 WL 2873762, No. 07-56876 (9th Cir. Sept. 9, 2009).

Full post as published by Seattle Trademark Lawyer on September 16, 2009 (boomark / email).