Affirmed by published opinion. Judge DAVIS wrote the opinion, in which Judge NIEMEYER and Judge KEENAN joined.
OPINION
Appellee PBM Products, LLC (PBM) filed this action pursuant to the Lanham Act, 15 U.S.C. § 1125(a), against Appellant Mead Johnson & Company, LLC (Mead Johnson) alleging that Mead Johnson distributed more than 1.5 million direct-to-consumer mailers that falsely claimed PBM’s baby formula products were inferi- or to Mead Johnson’s baby formula products. After a jury found that Mead Johnson had engaged in false advertising, the district court issued an injunction prohibiting Mead Johnson from making similar claims. On appeal, Mead Johnson presents three clusters of issues: (1) whether the district court erred in its dismissal of Mead Johnson’s counterclaims; (2) whether the district court abused its discretion in its admission of expert opinion testimony and evidence of prior litigation between the parties; and (3) whether the district court erred or abused its discretion in issuing the injunction. We have fully considered all of the issues presented, and we reject Appellant’s contentions. Accordingly, we affirm.
I.
A.
PBM produces store-brand, “generic,” infant formula. Mead Johnson produces baby formula products under the brand name Enfamil, including a standard formula, a formula with broken-down proteins, and a formula with added rice starch. Both companies use the same supplier for two key nutrients — docosahexaenoic acid (DHA) and arachidonic acid (ARA) — which are important to an infant’s brain and eye development. Mead Johnson calls these nutrients by their brand name “Lipil,” while PBM uses their generic label “lipids.” Both companies use the same level of the lipids. As a result, PBM includes a comparative advertising label on their formula that states, “Compare to Enfamil.”
The parties are familiar combatants on the Lanham Act battlefield. For example, in 2001, Mead Johnson distributed brochures and tear-off notepads to patients in pediatricians’ offices stating that store-brand formula did not have sufficient calcium or folic acid. PBM sued and obtained a restraining order prohibiting Mead Johnson from making similar statements.
PBM Products, Inc. v. Mead Johnson & Co.,
The instant engagement began in 2008, when Mead Johnson distributed a mailer *117 directly to consumers as part of a new advertising campaign. The mailer focused on Mead Johnson’s Enfamil LIPIL infant formula and expressly compared it to store brands. The mailer was distributed to 1.6 million consumers across the country between June 2008 and April 2009. The target audience consisted of parents of two- to three-month old infants. The mailer cited studies that compared Mead Johnson’s current formula with an older version of the same formula and concluded that the addition of the lipids resulted in improved eye and brain development. Specifically, the mailer contained the following statements:
• “It may be tempting to try a less expensive store brand, but only Enfamil LIPIL is clinically proven to improve brain and eye development.”
• “... before you try a store brand of formula, remember that a full year of Enfamil LIPIL goes a long way to nourishing the dreams you have for your little one.”
• “All infant formulas are not the same ... Enfamil LIPIL formulas offer expert recommended levels of DHA and ARA.”
• “Enfamil LIPIL’s unique formulation is not available in any store brand.”
• “There are plenty of other ways to save on baby expenses without cutting back on nutrition.”
• “Store brands may cost less, but Enfamil gives your baby more. When it comes to nutrition and development, you want a product you can rely on.”
In addition, the mailer displayed a checklist stating that Enfamil LIPIL is “[p]roven to result in IQ scores similar to breastfed babies” and “[p]roven to enhance visual development,” while indicating that the “Store Brand” does not. Finally, the mailer provided a graphic of a duck showing a comparison of visual sharpness where one half of the graphic, captioned “with LIPIL,” was clear and the other half of the graphic, captioned “without LIPIL,” was blurry.
B.
In April 2009, PBM sued Mead Johnson alleging false advertising in violation of the Lanham Act, 15 U.S.C. § 1125(a)(1)(A) and (B), and commercial disparagement. The district court denied PBM’s request for a temporary restraining order.
PBM Products v. Mead Johnson,
Prior to trial, the district court granted PBM summary judgment on Mead Johnson’s defamation counterclaim.
PBM Products v. Mead Johnson,
The district court also denied Mead Johnson’s motion for summary judgment on PBM’s claims.
PBM Products v. Mead Johnson,
Also prior to trial, the district court denied Mead Johnson’s motion to exclude the testimony of two PBM experts, Joseph Ridgway and Douglas Schoen.
PBM Products v. Mead Johnson,
During discovery, PBM limited its case to the literal and implied false claims communicated by the mailer. Specifically, the claims in question by the time of trial were two express statements contained in the mailer and two implied statements. The two express statements were: (1) “mothers who buy store brand infant formula to save baby expenses are cutting back on nutrition compared to [Mead Johnson’s] Enfamil” and (2) “only Enfamil has been clinically proven to improve infants’ mental and visual development.” The two messages implied by the mailer were: (1) Enfamil contains two important fatty acids, DHA and ARA, and PBM’s store brand formulas do not; and (2) Enfamil has been clinically tested and shown to be superior to PBM’s formula with respect to brain and eye development in infants.
At trial, the district court permitted PBM to introduce evidence concerning the parties’ prior litigation. Specifically, the court admitted testimony about the prior false and misleading advertisements and the fact the parties settled the prior litigation. However, the court excluded evidence regarding the settlement amounts.
At the close of Mead Johnson’s case on its Lanham Act counterclaims, the district court granted PBM’s motion for judgment as a matter of law and dismissed the claims based on statute of limitations, laches, and deficiencies in the merits.
PBM Products v. Mead Johnson,
On November 10, 2009, the jury returned a general verdict on PBM’s claim, finding that Mead Johnson “engaged in false advertising in violation of the Lanham Act” and awarded PBM $13.5 million in damages. On December 1, 2009, the district court issued an injunction without
*119
making any of the findings required by
eBay v. MercExchange,
II.
We first address Mead Johnson’s contention that the district court erred in rejecting its defamation counterclaim and its Lanham Act counterclaims as a matter of law.
A.
Mead Johnson argues that the district court erred in granting summary judgment in favor of PBM on Mead Johnson’s defamation claim. We review
de novo
whether the district court erred in granting summary judgment, viewing the facts and drawing all reasonable inferences therefrom in the light most favorable to Mead Johnson.
Georgia Pacific Consumer Products v. Von Drehle Corp.,
Under Virginia Law, a defamation plaintiff “first must show that a defendant has published a false factual statement that concerns and harms the plaintiff or the plaintiffs reputation.”
Hyland v. Raytheon Tech. Servs.,
The district court found the statement “Mead Johnson Lies About Baby Formula ... Again” was substantially true because “false advertising is substantially synonymous with lying.” J.A.1930-31. Mead Johnson claims that the ordinary meaning of a “lie” implies a deliberate intent to deceive or an “intentional untruth.” Appellant Br. at 56 (citing Random House Webster’s Unabridged Dictionary). Mead Johnson asserts that it is possible to violate the Lanham Act absent any intentional falsehoods. Thus, Mead Johnson asserts that the district court wrongly concluded that false advertising is substantially synonymous with lying. We disagree.
The meaning of the word “lie” includes to “tell an untruth” or to “speak or write falsely.” Black’s Law Dictionary, 1005 9th Ed.2009. Mead Johnson did not dispute that it distributed false statements concerning PBM’s formulas on prior occasions. Accordingly, the statement is substantially true. In addition, the statement, read in context, makes clear that the “lies” referred to prior false advertising. Consequently, summary judgment was warranted.
B.
The district court also disposed of Mead Johnson’s Lanham Act counterclaims as a matter of law; it granted PBM’s motion for judgment at the close of
*120
all the evidence. We review
de novo
awards of judgment as a matter of law.
E. E.O.C. v. Navy Fed. Credit Union,
The Lanham Act prohibits the “false or misleading description of fact, or false or misleading representation of fact, which ... in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person’s goods, services, or commercial activities.” 15 U.S.C.A. § 1125(a)(1)(B). Thus, a plaintiff asserting a false advertising claim under the Lanham Act must establish that:
(1) the defendant made a false or misleading description of fact or representation of fact in a commercial advertisement about his own or another’s product; (2) the misrepresentation is material, in that it is likely to influence the purchasing decision; (3) the misrepresentation actually deceives or has the tendency to deceive a substantial segment of its audience; (4) the defendant placed the false or misleading statement in interstate commerce; and (5) the plaintiff has been or is likely to be injured as a result of the misrepresentation, either by direct diversion of sales or by a lessening of goodwill associated with its products.
Scotts Co. v. United Industries,
For liability to arise under the false advertising provisions of the Lanham Act, “the contested statement or representation must be either false on its face or, although literally true, likely to mislead and to confuse consumers given the merchandising context.”
C.B. Fleet Co. v. SmithKline Beecham Consumer Healthcare, L.P.,
“In analyzing whether an advertisement ... is literally false, a court must determine, first, the unambiguous claims made by the advertisement ..., and second, whether those claims are false.”
Scotts,
*121
Further, as courts have long held, it is proper to use the analogous state limitations period for Lanham Act suits because the Act provides no express statute of limitations.
See Reed v. United Transp. Union,
The district court’s conclusion that the statute of limitations barred Mead Johnson’s false advertising claim concerning PBM’s routine and gentle formula for all ads issued prior to May 18, 2007 was proper. Mead Johnson filed its counterclaim on May 18, 2009. Therefore, claims that accrued before May 18, 2007 are time-barred by the two year statute of limitations. The district court found that PBM first made the “Compare to Enfamil” claim for its routine product no later than 2003 and for its gentle product in 2006. As such, the statute of limitations barred Mead Johnson’s counterclaim for advertisements published before May 18, 2007.
As for allegations concerning advertisements for products published after May 18, 2007, the district court’s application of laches regarding PBM’s routine and gentle products is neither “guided by erroneous legal principles” nor based “upon a clearly erroneous factual finding.”
Brown v. Nucor Corp.,
Estoppel by laches generally applies to preclude relief for a plaintiff who has unreasonably “slept” on his rights.
See Brittingham v. Jenkins,
Here, Mead Johnson’s delay was unreasonable because Mead Johnson knew about the “compare to” claim since at least 2006 when the parties were involved in trademark litigation over a label that contained the exact same claim. As the dis
*122
trict court noted, the unreasonable delay prejudiced PBM because of PBM’s continued use of the advertisement on all of its formulas in over a dozen retail stores for years. “Indeed, by alleging that PBM has been unjustly enriched by over $27 million as a result of the ‘compare to’ ads, [Mead Johnson] must concede that permitting this suit to go forward would enable it to benefit from its own unreasonable delay.”
Finally, the district court did not err in granting judgment as a matter of law on Mead Johnson’s Lanham Act counterclaim concerning PBM’s rice starch formula advertisements. Mead Johnson claimed that the “compare to” ad impliedly communicated the false message that the performance of PBM’s products have been tested and verified as equivalent to Mead Johnson’s counterpart formula. To support its claim, Mead Johnson offered the testimony of Dr. Ravi Dhar, who conducted two consumer surveys. However, Dhar assumed that respondents who stated “same” meant “identical,” even though he admitted that some respondents who thought the products were nearly the same would have chosen “same” instead of “different.”
Similarly, the district court concluded that Mead Johnson failed to show that other alleged false statements were actually false. As to the allegations that the “compare to” language impliedly communicated that the products had been tested against each other, PBM’s marketing director testified that the products have, in fact, been tested against each other. Id. at *5. In addition, Mead Johnson alleged that PBM’s label stated its gentle formula contains “partially broken down whey protein” but presented no evidence to suggest otherwise. As a result, the alleged implied message could not be proven false.
In any event, even if PBM’s “compare to” messages were false, the district court correctly concluded that Mead Johnson cannot prove that the “compare to” language caused any damages.
See Xoom v. Imageline,
III.
We now turn to Mead Johnson’s contention that the district court erred by admitting (1) expert survey evidence and (2) evidence of prior Lanham Act litigation between the parties. The exclusion or admission of evidence is reviewed for abuse of discretion.
Schultz v. Capital Int’l Sec., Inc.,
A.
Pursuant to Federal Rule of Evidence Rule 702, expert testimony is admissible if it will assist the trier of fact and is (1) “based upon sufficient facts or data,” (2) “the product of reliable principles and methods,” and (3) “the principles and methods [have been applied] reliably to the facts of the case.” Fed.R.Evid. 702. As the Supreme Court has explained, evidence is admissible under Rule 702 if “it rests on a rehable foundation and is relevant.”
Daubert v. Merrell Dow Pharmaceuticals,
A Lanham Act plaintiff “asserting an implied falsehood claim must establish that the advertising tends to deceive or mislead a substantial portion of the intended audience.”
Scotts Co. v. United Industries Corp.,
Here, Mead Johnson contends that the surveys conducted by Schoen and Ridgeway, PBM’s consumer experts, were inherently unreliable and irrelevant, and their testimony should have been excluded because they both surveyed the wrong universe of respondents. A “universe” is “that segment of the population whose perceptions and state of mind are relevant to the issues in the case.” McCarthy on Trademarks and Unfair Competition § 32:159 (4th ed.2003). A “survey of the wrong ‘universe’ will be of little probative value in litigation.” Id. We are persuaded that in this case, while the survey sample may not exactly match the audience that received the advertisement, it is a sufficiently close approximation of the recipient pool to be admissible. Accordingly, the district court did not abuse its discretion in admitting the expert testimony.
Schoen conducted his survey by presenting an online survey to a group of participants located by a third party. The survey participants were pre-screened to ensure that they were (1) new parents or expecting a baby in the next six months, *124 (2) were open to considering purchasing infant formula, (3) were not participating in the Women, Infants, and Children Nutrition Program, and (4) were or would be the primary or shared decision maker in choosing infant formula brands.
The Ridgway survey was based on interviews conducted among four groups of consumers, two of which were exposed to the disputed advertisement and two of which were exposed to a “control mailer” that contained similar, but more accurate statements about Mead Johnson’s infant formula. AH participants were new and expectant mothers. After viewing either the disputed advertisement or the control advertisement, participants dialed a toll free number and were questioned about the material.
The district court concluded that “whüe Mead Johnson has pointed out numerous ways in which it would have conducted Ridgway’s survey differently, its arguments do not demonstrate that the methods used were not of the type considered reliable by experts in Ridgway’s field.”
PBM Products v. Mead Johnson,
B.
Mead Johnson also contends that the district court erred in admitting evidence of the 2001 and 2002 Lanham Act lawsuits filed by PBM. Mead Johnson argues that the evidence lacked relevance under Federal Rule of Evidence 401 and was more prejudicial than probative under Federal Rule of Evidence 403. These contentions lack merit.
Evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Fed.R.Evid. 401. In addition to its relevance, the probative value of evidence must not be substantially outweighed by the danger that it will cause unfair prejudice.
See
Fed.R.Evid. 403;
United States v. Queen,
We have previously noted that “[i]t is not an easy thing to overturn a Rule 403 ruling on appeal.”
United States v. Udeozor,
Here, Mead Johnson contends that the prior litigation was not probative and its admission was “designed simply to paint Mead Johnson as a serial lawbreaker so that PBM counsel could inflame the jury both at opening and closing by pitching this case as one in which a lawless out-of-town corporation sought to ‘crush’ the small hometown defendant.” Appellant Br. at 46. We disagree. The evidence of prior litigation between the parties in regards to baby formula advertisement is relevant because it speaks to Mead Johnson’s intent in making its misleading claims. In particular, the Fourth Circuit has “assume[d], without deciding, that a defendant’s history of false advertising could, in a proper case, operate to relieve the plaintiff of presenting extrinsic evidence of consumer confusion created by an impliedly false advertisement.”
Scotts,
Apart from its relevance, the probative value of the evidence was not substantially outweighed by the danger that it will cause unfair prejudice. Any unfair prejudice was limited by the court’s exclusion of specific evidence regarding the settlements in the cases. Further, a jury limiting instruction was never sought. Contrary to Mead Johnson’s allegation, the prior litigation was relevant to the instant case and its probative value was not substantially outweighed by any danger of unfair prejudice. Therefore, we conclude the district court did not abuse its discretion by admitting the evidence.
IV.
We turn now to the propriety and scope of the district court’s injunction. We review an order granting an injunction for abuse of discretion, reviewing factual findings for clear error and legal conclusions
de novo. Muffley ex rel. N.L.R.B. v. Spartan Mining Co.,
Mead Johnson first argues that the district court abused its discretion by issuing an injunction because PBM failed to establish any risk of recurrence of the violation and because the mailer had been discontinued prior to trial. Second, Mead Johnson argues that even if the district court properly invoked its authority to enjoin Mead Johnson’s advertising claims, that the district court abused its discretion by enjoining conduct that is beyond the harm PBM sought to redress and proved at trial. We address each argument in turn.
A.
As noted above, a plaintiff asserting a false advertising claim under the Lanham Act must establish:
(1) the defendant made a false or misleading description of fact or representation of fact in a commercial advertisement about his own or another’s product; (2) the misrepresentation is material, in that it is likely to influence the purchasing decision; (3) the misrepresentation actually deceives or has the tendency to deceive a substantial segment of its audience; (4) the defendant placed the false or misleading statement in interstate commerce; and (5) the plaintiff has been or is likely to be injured as a result of the misrepresentation, either by direct diversion of sales or by a lessening of goodwill associated with its products.
Scotts Co.,
When a violation has been established, the Lanham Act vests district courts with the “power to grant injunctions, according to the principles of equity and upon such terms as the court may deem reasonable, to ... prevent a violation under [§ 1125(a)].” 15 U.S.C. § 1116(a). Before an injunction may issue, however, the party seeking the injunction must demonstrate that (1) it has suffered an irreparable injury; (2) remedies available at law are inadequate; (3) the balance of the hardships favors the party seeking the injunction; and (4) the public interest would not be disserved by the injunction.
eBay, Inc. v. MercExchange,
We readily conclude in the case before us, mindful of the principles set forth in
eBay,
that injunctive relief was proper. The district court concluded that PBM suffered from irreparable harm based primarily on the fact that Mead Johnson’s advertising misled customers.
[T]he most difficult element to demonstrate when seeking an injunction against false advertising is the likelihood that one will suffer irreparable harm if the injunction does not issue. It is virtually impossible to prove that so much of one’s sales will be lost or that one’s goodwill will be damaged as a direct result of a competitor’s advertisement. Too many market variables enter into the advertising-sales equation. Because of these impediments, a Lanham Act *127 plaintiff who can prove actual lost sales may obtain an injunction even if most of his sales decline is attributable to factors other than the competitor’s false advertising. In fact, he need not even point to an actual loss or diversion of sales.
The Lanham Act plaintiff must, however, offer something more than a mere subjective belief that he is likely to be injured as a result of the false advertising, he must submit proof which provides a reasonable basis for that belief. The likelihood of injury and causation will not be presumed, but must be demonstrated in some manner.
Furthermore, PBM demonstrated that remedies at law are inadequate. While the jury awarded PBM substantial damages, the damages judgment compensates PBM for harm that flowed directly from the mailer. As the district court aptly noted, the injunction prevents Mead Johnson from “infecting the marketplace with the same or similar claims in different advertisements in the future.”
We further agree with the district court that the balance of the hardships favors PBM. As the district court recognized, Mead Johnson “simply has no equitable interest in perpetuating the false and misleading claims in the Mailer.... Mead Johnson’s main contentions concern the nature of injunctive relief, not whether that relief should be granted in the first instance, and therefore do not mandate a different conclusion.”
Finally, the district court did not err in its finding that the public interest heavily favors injunctive relief. As the district court concluded, “it is self evident that preventing false or misleading advertising is in the public interest in general.”
B.
We next address the scope of the injunction. “It is well established that injunctive relief should be no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs.”
Kentuckians for Commonwealth v. Rivenburgh,
Here, the district court enjoined the two express claims made in the mailer and concluded that the record supported an injunction including the express claims because such an injunction would not be inconsistent with the jury’s verdict.
See Ohio-Sealy Mattress Mfg. v. Sealy,
We are persuaded that the injunction is not overbroad because it only reaches the specific claims that the district court found to be literally false. If the injunction were limited to the mailer and did not enjoin the false claims made therein, Mead Johnson would be free to use false statements in future advertisements, contrary to the very purpose of injunctive relief under the circumstances shown here. As the district court noted, to make its claim that only Enfamil has been clinically proven to promote infant development, Mead Johnson relied primarily on a group of government funded clinical studies. However, the court concluded that Mead Johnson’s reliance was unjustified because trial testimony established that the studies’ conclusion was not limited to Mead Johnson formula, but to any formula that contained similar amounts of the same ingredients. In addition, since the studies it relied upon were completed, the Mead Johnson formula at issue had undergone at least 19 changes. Consequently, the district court concluded, the “only clinically proven” claim was misleading. Because the district court’s account of the evidence is plausible in light of the record viewed in its entirety, its factual findings are not clearly erroneous.
See TFWS v. Franchot,
V.
For the foregoing reasons, the judgment of the district court is
AFFIRMED.