158 F. Supp. 3d 106
N.D.N.Y.2016Background
- General Mills (owner of Yoplait) sued Chobani under the Lanham Act and Minnesota law over Chobani’s “Simply 100” ad campaign, which compared Chobani Simply 100 to Yoplait Greek 100 and highlighted that Chobani has "no preservatives" while pointing out that Yoplait contains potassium sorbate.
- Chobani’s campaign included a television commercial, print ad, and digital content stating or implying that potassium sorbate is used to "kill bugs" and that Chobani has "no bad stuff."
- Potassium sorbate is FDA-GRAS, widely used as a food preservative, but also appears as an ingredient in certain EPA-classified "minimum risk" pesticide formulations used to control insects.
- General Mills moved for a preliminary injunction to stop dissemination of the Commercial, Print Ad, Digital Content, and related claims about Yoplait being unsafe because of potassium sorbate.
- The district court found the relief sought prohibitory, applied the Second Circuit/Winter preliminary-injunction framework, and concluded General Mills had shown a substantial likelihood of success on a Lanham Act literal-false-by-necessary-implication theory.
- The court granted the preliminary injunction enjoining Chobani from disseminating the ads and specific claims about potassium sorbate and required General Mills to post a $1,000,000 bond.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Chobani's ads are literally false (false by necessary implication) | Ads imply Yoplait Greek 100 is unsafe because it contains potassium sorbate; literal falsity inferred from context | Statements about potassium sorbate are literally true and other statements are nonactionable puffery/opinion | Held likely literally false by necessary implication; plaintiff likely to succeed on Lanham Act claim |
| Whether General Mills suffers irreparable harm absent injunction | Comparative, named-product false ad will cause loss of sales, market share, goodwill; presumption of irreparable harm applies | Presumption may be abrogated; plaintiff has not proven non-speculative harm | Held irreparable harm shown (competitors; logical causal connection); injunction appropriate |
| Appropriate preliminary-injunction standard (mandatory vs. prohibitory) | N/A (sought to enjoin dissemination) | Argued relief is mandatory, raising higher standard | Held relief is prohibitory (seeking to stop new ads), so standard not heightened |
| Balance of hardships & public interest | Harm to GM outweighs any harm to Chobani; public interest favors preventing misleading food-safety claims | Chobani asserted right to advertise natural ingredients | Held balance favors General Mills; public interest in preventing misleading advertising supports injunction |
Key Cases Cited
- Winter v. Nat’l Res. Def. Council, 555 U.S. 7 (2008) (four-factor preliminary injunction standard requires likelihood of success, irreparable harm, balance of equities, and public interest)
- Salinger v. Colting, 607 F.3d 68 (2d Cir. 2010) (Second Circuit's discussion of preliminary-injunction formulation and irreparable-harm considerations)
- Time Warner Cable, Inc. v. DIRECTV, Inc., 497 F.3d 144 (2d Cir. 2007) (literal falsity and misleading-by-implication doctrine; consumer deception can be presumed for literal falsehoods)
- Polar Corp. v. Coca-Cola Co., 871 F. Supp. 1520 (D. Mass. 1994) (preliminary injunction where ad implied competitor's product was impure/unsafe)
- Coca-Cola Co. v. Tropicana Prods., 690 F.2d 312 (2d Cir. 1982) (consumer deception presumption where advertising is literally false)
- eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388 (2006) (equity principles governing injunctions; caution against categorical presumptions of irreparable harm)