383 F. Supp. 3d 343
D.N.J.2019Background
- EP Henry and Cambridge are NJ competitors selling concrete pavers; EP Henry markets "Durafacing" and "ColorTech" technologies and advertises widely.
- Cambridge filed a Lanham Act counterclaim alleging 40+ specific EP Henry advertising statements were false, misleading, or denigrating (including claims of "unrivaled beauty/durability," "best," slip-resistance, stain resistance, and a proprietary protective formula).
- EP Henry moved for judgment on the pleadings under Rule 12(c), arguing the challenged statements are non-actionable puffery.
- Cambridge argued many statements are objectively verifiable performance claims (not puffery) when read in context, and raised side-by-side photographic comparisons and comparative claims against Cambridge's Armortec.
- The court evaluated whether each challenged statement is opinion/puffery or a factual, testable assertion under Section 43(a) of the Lanham Act and denied judgment where plausibly factual.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether general praise/superlatives are non-actionable puffery | EP Henry: terms like "best," "unrivaled beauty," "a step above the rest" are subjective opinion and puffery | Cambridge: such statements may be read in context as implying verifiable superiority | Court: Statements of pure subjective praise (e.g., "unrivaled beauty," "best") are puffery and dismissed as a matter of law |
| Whether claims tied to a proprietary process convert puffery into verifiable fact | EP Henry: "sophisticated process" and "proprietary formula" are sales talk and not objectively testable | Cambridge: process claims convey measurable product attributes and can be proven false | Court: Contextualized process claims may be factual; denied dismissal as plausibly actionable |
| Whether performance attributes (durability, slip-resistance, stain resistance) are puffery | EP Henry: such claims are opinion or expectations about longevity | Cambridge: these are measurable product attributes important to consumers | Court: Performance claims (durability, slip-resistance, stain resistance) are potentially measurable and not puffery; dismissal denied |
| Whether comparative/side-by-side ads (naming competitor/Armortec) are actionable | EP Henry: comparative phrasing is promotional and vague | Cambridge: comparisons invite objective testing and could mislead consumers | Court: Comparative claims and side-by-side depictions can take on factual character; dismissal denied |
Key Cases Cited
- DiCarlo v. St. Mary Hosp., 530 F.3d 255 (3d Cir.) (standard for judgment on the pleadings)
- Rosenau v. Unifund Corp., 539 F.3d 218 (3d Cir.) (motion-to-dismiss/12(c) standard)
- Jablonski v. Pan Am. World Airways, Inc., 863 F.2d 289 (3d Cir.) (pleading inferences construed for nonmoving party)
- Castrol Inc. v. Pennzoil Co., 987 F.2d 939 (3d Cir.) (definition and non-actionability of puffery)
- Pizza Hut, Inc. v. Papa John's Int'l, Inc., 227 F.3d 489 (5th Cir.) (context can turn slogan into factual claim)
- Bracco Diagnostics, Inc. v. Amersham Health, Inc., 627 F. Supp. 2d 384 (D.N.J.) (performance-based claims measurable by comparative research are not puffery)
- Clorox Co. Puerto Rico v. Proctor & Gamble Commercial Co., 228 F.3d 24 (1st Cir.) (fact-based comparative advertising may be actionable)
- U.S. Healthcare, Inc. v. Blue Cross of Greater Philadelphia, 898 F.2d 914 (3d Cir.) (mere puffery is not deceptive because consumers do not rely on exaggerations)
- CPS MedManagement LLC v. Bergen Reg'l Med. Ctr., L.P., 940 F. Supp. 2d 141 (D.N.J.) (statements that are vague opinion/puffery are not actionable)
- In re Rust-Oleum Restore Mktg., Sales Practices & Prod. Liab. Litig., 155 F. Supp. 3d 772 (N.D. Ill.) (combined claims may transform puffery into measurable comparative assertions)