928 F.3d 514
6th Cir.2019Background
- Louisiana-Pacific (LP) makes engineered-wood siding treated with zinc borate; James Hardie makes fiber-cement siding and ran a “No Wood Is Good” ad campaign comparing the products.
- Hardie’s ads used a photo of a fist-sized hole in LP siding that was color-enhanced and a superimposed woodpecker, plus the headline “Pests Love It” and text stating engineered wood is “[s]ubject to damage caused by woodpeckers, termites and other pests.”
- LP sued Hardie under the Lanham Act and the Tennessee Consumer Protection Act, and moved for a preliminary injunction to stop the ads; the district court denied the injunction in part and granted in part, and LP appealed the adverse rulings.
- The key legal question was whether Hardie’s advertising statements/images were literally false or otherwise misleading such that LP was likely to succeed on false-advertising/disparagement claims.
- The district court found LP failed to show a likelihood of success on the merits (literal falsity or that a substantial portion of consumers were misled); the Sixth Circuit reviewed de novo legal conclusions and for abuse of discretion the injunction denial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether woodpecker imagery is literally false or misleading | LP: Photo was digitally altered (woodpecker added, hole enhanced), so ad falsely implies woodpeckers make holes in LP siding | Hardie: Photo shows a real hole; reasonable consumers expect marketing retouching; experts say woodpeckers can cause such holes | Court: Not literally false; reasonable consumers would not expect a candid woodpecker-in-the-act photo and LP failed to show consumers were actually misled |
| Whether headline “Pests Love It” is literal falsehood or puffery | LP: Phrase and follow-on sentence (“subject to damage…”) are testable and proven false by tests showing termite resistance | Hardie: “Pests Love It” is puffery; “subject to damage” is ambiguous and accurately signals potential susceptibility (e.g., grazing) | Court: Headline is puffery; second sentence is ambiguous (not unambiguously false); LP didn’t prove literal falsity or actual consumer deception |
| Whether LP proved consumer deception necessary for a misleading-ad claim | LP: Presented evidence of wide ad reach and studies showing ads influence purchase decisions | Hardie: Reach/influence ≠ proof consumers were misled about factual claims | Court: Reach/influence evidence insufficient; LP needed evidence showing how consumers actually reacted and were deceived |
| Whether denial of preliminary injunction was abuse of discretion | LP: Must be protected pending final determination because ads harm reputation/sales | Hardie: LP failed likelihood-of-success element, so injunction inappropriate | Court: No abuse—because LP showed neither literal falsity nor sufficient proof of deception, injunction denial affirmed |
Key Cases Cited
- Wysong Corp. v. APN, Inc., 889 F.3d 267 (6th Cir. 2018) (distinguishes literal falsity from nonactionable puffery and explains consumer-deception standards)
- Innovation Ventures, LLC v. N.V.E., Inc., 694 F.3d 723 (6th Cir. 2012) (evidence required to show literal falsity and misleading advertisement)
- Am. Council of Certified Podiatric Physicians and Surgeons v. Am. Bd. of Podiatric Surgery, 185 F.3d 606 (6th Cir. 1999) (substantial-tendency-to-deceive standard for misleading advertising)
- S. Glazer’s Distribs. of Ohio, LLC v. Great Lakes Brewing Co., 860 F.3d 844 (6th Cir. 2017) (preliminary injunction factors and balancing approach)
- Hall v. Edgewood Partners Ins. Ctr., Inc., 878 F.3d 524 (6th Cir. 2017) (standards of review for injunction rulings)
- Winnett v. Caterpillar, Inc., 609 F.3d 404 (6th Cir. 2010) (warning against injunctions when movant shows no likelihood of success)
- Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7 (2008) (preliminary injunction standards)