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Dyson, Inc. v. Sharkninja Operating LLC

United States District Court, N.D. Illinois, Eastern Division

April 26, 2017

DYSON, INC., Plaintiff,
v.
SHARKNINJA OPERATING LLC and SHARKNINJA SALES COMPANY, Defendants.

          MEMORANDUM OPINION AND ORDER

          Joan B. Gottschall United States District Judge

         The Lanham Act does not protect sellers from competition from better or cheaper products, but it does protect sellers “from having their customers lured away from them by deceptive ads.” Schering-Plough Healthcare Prod., Inc. v. Schwarz Pharma, Inc., 586 F.3d 500, 512 (7th Cir. 2009). Believing it was losing too many customers to the allegedly false and misleading claims of its competitor, plaintiff Dyson, Inc. filed this suit against defendants Sharkninja Operating LLC and Sharkninja Sales Company (together “Shark”).[1] The parties have filed cross-motions for summary judgment. For the reasons set forth below, the court grants in part and denies in part plaintiff's motion for summary judgment. The court grants defendants' motion for partial summary judgment.

         I. BACKGROUND

         For purposes of these cross-motions for summary judgment, the following facts are undisputed unless otherwise noted.[2]

         Plaintiff Dyson, like Shark, designs and sells vacuum cleaners, and the two compete against each other. Dyson's vacuums were quite lucrative until Shark's vacuums hit the market. In the three months beginning September 2014 (when, as we shall see, Shark began running an infomercial for its competing vacuum), Dyson's margin on its DC65 vacuum fell from $300 per vacuum to less than $100 per vacuum.

         Dyson had launched its lucrative DC65 vacuum in the United States in January 2014. About six months later, on or about July 8, 2014, Shark began offering for sale on its website its NV650-series vacuums, which it also referred to as “Rotator Powered Lift-Away” vacuums. The packaging on the NV650 made direct claims against Dyson's DC65. Specifically, the NV650 packaging stated, among other things, “CLEANS CARPETS BETTER VS. Dyson's Best Vacuum Proven by Independent Lab Testing. **Based on ASTM F608 in Turbo/Carpet Mode vs. Dyson DC65.”

         Shark also made claims about its vacuum on its website at some point. The parties have not included in their statements of facts any evidence as to when the advertisements commenced, [3] but at some point until January 8, 2016, Shark's website had the following to say about its NV650 vacuum:

Cleans Carpets Better ** Compared to Dyson's Best Vacuum! **Based on the ASTM F608 in Carpet/Low Pile Mode vs. Dyson DC65.

         In September 2014, Shark began advertising its NV650 Powered Lift-Away vacuum on a 30-minute infomercial. During the infomercial, Shark's CEO says, “In fact, my new Rotator Powered Lift-Away has more suction and deep cleans carpets better than Dyson's best vacuum.” While the CEO says the quoted words, the screen reads, “Shark NV650 v. Dyson DC65 based on ASTM F558 measured at the hose and ASTM F608 embedded dirt.” The CEO added, “I have the independent lab tests to back it up. We asked independent testing facilities to conduct the one and only industry-recognized test of carpet cleaning, and we went head to head with Dyson's best. Both vacuums were tested on four of the most commonly owned carpet types in America. And when all was said and done, the independent lab tests proved without question that our new Shark Rotator Powered Lift-Away deep cleans carpets better than Dyson's best $600 vacuum.” At the time, the screen read, “Independent LAB TESTS PROVE . . . Dramatization footage of ASTM F608 embedded dirt (NV650 in carpet/low pile mode) Shark NV650 vs. Dyson DC65.”

         On or about October 27, 2014, Shark began airing a revised infomercial. In this one, when Shark's CEO says, “In fact, my new Rotator Powered Lift-Away has more suction and deep cleans carpets better than Dyson's best vacuum, ” the screen says “SHARK DEEP CLEANS CARPETS BETTER THAN DYSON'S BEST VACUUM DC65” and “Shark NV650 v. Dyson DC65 based on ASTM F558 measured at the hose & ASTM F608 embedded dirt (NV650 in carpet/low pile mode).” In August 2015, Shark removed these statements from the infomercials.

         In addition to the infomercials, Shark ran print advertisements. On November 17, 2014, Shark ran an advertisement in People Magazine that claimed Shark's Rotator Powered Lift-Away vacuum provides “MORE Suction Power & Cleaner Carpets** vs. Dyson's Best Vacuum (Proven by Independent lab testing!) **Based on NV650 vs. Dyson DC65: ASTM F608 (embedded dirt in carpet).”

         Shark also ran short commercials. At some point (the parties do not say when), Shark ran a 15-second commercial that said, “Independent lab tests prove that Shark's new Powered Lift-Away deep cleans carpets better than a $600 Dyson.” The print on the screen stated, “Based on ASTM F608 in carpet/low pile mode vs. Dyson DC65.” In a 30-second commercial (the parties do not say when it aired), Shark's voiceover stated that the Powered Lift-Away vacuum “Cleans carpets better than a $600 Dyson” while the screen stated “Shark NV650 vs. Dyson DC65 based on ASTM F558 measured at the hose & ASTM F608 embedded dirt (NV650 in carpet/low pile mode).”

         ASTM F608

         The advertising Dyson challenges in this case references independent testing, specifically testing under ASTM F608. ASTM is an organization that sets standards for product testing. ASTM F608 is (according to its own label) the “Standard Test Method for Evaluation of Carpet Embedded Dirt Removal Effectiveness of Household/Commercial Vacuum Cleaners.” The parties recognize ASTM F608 as essentially the gold standard for testing the ability of vacuums to remove embedded dirt from carpet. The following portions of the 20-paged, single spaced ASTM F608 are relevant to the parties' arguments:

4. Significance and Use 4.1 This test method provides an indication of the capability of the vacuum cleaner to remove embedded dirt from carpeting. This test method is based upon results of home cleaning tests so that, in most cases a reasonable correlation exists between home and laboratory results. The amount of dirt picked up in the laboratory test may not be the same as in the home; however, it will show that, in most cases, a vacuum cleaner that performs well in the laboratory will perform well in a home. Laboratory results may differ due to variations in the homes, carpets, dirt, and other factors . . .
* * *
7. Sampling
7.1 A minimum of three units of the same model vacuum cleaner selected at random in accordance with good statistical practice shall constitute the population sample.
7.1.1 To determine the best estimate of cleaning ability effectiveness for the population of the vacuum cleaner model being tested, the arithmetic mean of the cleaning ability rating of the sample from the population shall be established by testing it to a 90% confidence level within ±5% of the mean value of the cleaning ability rating.
7.1.2. Annex A3 provides a procedural example for determining the 90% confidence level and when the sample size shall be increased.
* * *
9.2.2 Used Test Vacuum Cleaners:
9.2.2.1 Recondition a used test vacuum cleaner, prior to each test run, as follows:
* * *
(4) For vacuum cleaners using non-disposable dirt receptacles, empty in accordance with the manufacturer's instructions after each test run and clean the receptacle until its weight is within 0.07 oz (2 g) of its original weight. Weigh the receptacle to the nearest 0.0035 oz (0.10 g) and install it as recommended by the vacuum cleaner manufacturer.
* * *
9.2.3 Test Vacuum Cleaner Settings:
9.2.3.1 If various settings are provided, set the motor speed setting, suction regulator, nozzle height, or combination thereof using the manufacturer's specifications as provided in the instruction manual for each type of carpet. Contact the manufacturer if no instructions are given, or if the instructions are unclear or inadequate.
* * *
9.3 Test Carpet Calibration
9.3.1 The purpose of calibration is to determine when the test carpet needs to be replaced by establishing a reference rating for each new preconditioned test carpet and to check this rating 50 or fewer test runs.
* * *
9.3.4 When the embedded dirt rating for either reference cleaner varies by 0.14 oz (4 g) from the original reference rating for the carpet, replace the carpet.
Note 6-Carpet pick up changes over time as the test carpet panel is used due to normal carpet wear. General laboratory practice is to track and record the number of test runs on each carpet panel. It is recommended to estimate, as closely as possible, the number of required test runs on all carpet panels intended to be used prior to starting any test program in order to establish that the selected carpet panels have a sufficient number of test runs left to complete the test program. All products being tested in a comparison test must be tested on the same calibrated carpet panel throughout the test program. If a particular carpet panel is found to no longer be acceptable for testing due to the 0.14 oz (4 g) limit being exceeded during a calibration check, all products tested on that particular carpet panel during the test program must be retested on the new carpet panel to insure proper comparison.
* * *
9.4 Carpet Embedded Dirt Removal Effectiveness Test:
* * *
9.4.23 The percent carpet-embedded dirt removal effectiveness for the population of vacuum cleaner model being tested is the arithmetic mean of geometric mean values of the percent carpet-embedded dirt removal effectiveness from a sample of the population meeting the requirements of the sampling statement (Section 7).
* * *
ANNEXES
* * *
A2.1 TEST CLEANING PATTERN AND TIME
A2.1 General-All vacuum cleaners, regardless of the width of their nozzles, shall be moved back and forth in a specified pattern on the 54 by 18-in. (1370 by 460mm) test area of the carpet for a total of exactly 16 strokes at the rate of 2.5 s per stroke, for a total time of 40±1 s, using any acceptable laboratory method to assure that these specifications are met. Examples of methods that have been found acceptable are visible-marked [sic] timing belt or a stopwatch to measure stroke time and cumulative time.
* * *
A.3.1 Theory
A3.1.1 The most common and ordinarily the best estimate of the population mean µ is simply the arithmetic mean, x, of the individual scores (measurements) of the units comprising a sample taken from the population. The average score of these units will seldom be exactly the same as the population mean; however, it is expected to be fairly close so that in using the following procedure it can be stated with 90% confidence that the true mean of the population, µ, lies within 5% of the calculated mean, x, of the sample taken form the population.
* * *
x = mean score of the sample taken from the population
* * *
A3.2 Procedure
* * *
A3.2.8 [If the desired 90% confidence level has been obtained, ] [t]he value of the final x may be used as the best estimate of the cleaning ability rating for the population.
* * *
A3.3.8 Testing the 90% Confidence Interval for Individual Carpet Scores:
* * *
[If the 90% confidence interval is not achieved, then] an additional test unit from the ...

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