OPINION
Plaintiffs and Defendants are competing producers of turfgrass seed and sod. After Defendants ran advertisements claiming that their turfgrass was better than Plaintiffs’ in certain key characteristics, Plaintiffs brought this lawsuit alleging false advertising under the Lanham Act and related state laws. The district court granted Defendants’ motion for summary judgment, ruling that Plaintiffs had failed to raise a triable issue of fact on the key issues of falsity, causation, and damages. We have jurisdiction pursuant to 28 U.S.C. § 1291 and reverse in part the district court’s judgment.
FACTS AND PROCEEDINGS BELOW
I. The Parties and the Turfgrass Business
The parties to this dispute are competing producers of turfgrass seed and sod. Each of the parties produces and sells a “dwarf tall fescue” turfgrass under a separate brand name: Plaintiff-Appellant Southland Sod Farms produces and sells “Marathon He”; Plaintiff-Appellant Pickseed West, Inc. produces and sells “Shortstop”; and Defendants-Appellees Turf Merchants, Inc., The Genesis Group, TMI Acquisition, Inc., KWS Seeds, Inc., and Frederick B. Ledeboer produce and sell “Bonsai.”
II. The Allegedly Offending Advertisements
Plaintiffs allege that, beginning in 1990, Defendants distributed comparative advertisements claiming that Bonsai grows much slower (a desirable turfgrass characteristic because it results in less mowing and maintenance costs) than other dwarf tall fescues, including those produced by Plaintiffs. The allegedly offending advertisements consisted of three types: (1) “bar chart” advertisements graphically comparing clipping weights of several tall fescues, including Pickseed’s Shortstop; (2) a “two-pot” advertisement, which contains a table and photograph comparing Bonsai and Southland’s Marathon He and claiming that in an “independent comparison test” “Bonsai tested best” in “major turf characteristics”; and (3) a claim on Defendants’ Bonsai seed containers and elsewhere that Bonsai requires “50% less mowing” based on “tests conducted by our research farm.”
Plaintiffs allege that Defendants’ product superiority claims contained in their comparison advertisements are false. In fact, argue Plaintiffs, there are no significant differences between Bonsai, Marathon He, and Shortstop in the turfgrass characteristics emphasized by Defendants, including growth, density, and maintenance costs.
According to Plaintiffs, the tests upon which Defendants based their product-comparison advertisements were faulty because they were undertaken in the first spring following a fall planting. For some reason, juvenile Bonsai planted in the fall has unusually slow establishment as a seedling and starts spring growth in late March or early April, about a month later than other dwarf tall fescues. The test underlying the bar-chart advertisements, conducted by Frederick Ledeboer, was undertaken from March through May 1990 following a September 1989 planting date.
IV. Procedural History
Plaintiffs commenced this action on August 14, 1992, alleging violations of § 43(a) of the Lanham Act, California Business & Professions Code §§ 17200 and 17500, and California common law. After the district court denied Plaintiffs’ motion for a preliminary injunction, Defendants filed a motion for summary judgment. On April 5, 1994, the district court granted the motion as to all defendants, finding: (1) that the advertisements were not literally false as a matter of law; (2) that Plaintiffs failed to raise a genuine issue of fact as to whether the advertisements deceived consumers; (3) that Plaintiffs failed to raise a triable issue of fact as to causation and damages; and (4) that for the same reasons that Plaintiffs’ Lanham Act claims failed, so did their state-law causes of action. On July 6, 1994, the district court denied Plaintiffs’ motion for reconsideration.
Plaintiffs appeal from the district court’s grant of summary judgment and denial of their motion for reconsideration.
DISCUSSION
I. Summary Judgment Standard
The district court’s grant of summary judgment is reviewed de novo. Warren v. City of Carlsbad,
The elements of a Lanham Act § 43(a)
A. Literal Falsity
To prove that an advertisement claim based on product testing is literally false, “a plaintiff must do more than show that the tests supporting the challenged claim are unpersuasive.” McNeil-P.C.C., Inc. v. Bristol-Myers Squibb Co.,
When evaluating whether an advertising claim is literally false, the claim must always be analyzed in its full context. Castrol,
Even if an advertisement is not literally false, relief is available under Lanham Act § 43(a) if it can be shown that the advertisement has misled, confused, or deceived the consuming public. Sandoz Pharmaceuticals Corp. v. Richardson-Vicks, Inc.,
III. Admissibility of Plaintiffs’ Expert Testimony
The bulk of Plaintiffs’ evidence consists of declarations, and deposition testimony from three expert witnesses: (1) M.C. Engelke, an expert in turfgrass breeding and development, whose testimony was proffered to demonstrate the unreliability of the Lede-boer and Spaulding tests and the falsity of Defendants’ product superiority claims; (2) Ken Struman, a consumer survey expert whose testimony was proffered to demonstrate how Defendants’ advertisements mislead the consuming public; and (3) Michael Wagner, an economics expert whose testimony was proffered to demonstrate the damage Defendants’ advertisements caused to South-land’s business.
In the district court, Defendants challenged the admissibility of these experts’ testimony on relevancy grounds. On appeal, they raise additional challenges based on the reliability requirement enunciated in Daubert v. Merrell Dow Pharmaceuticals, Inc.,
A. M.C. Engelke
To demonstrate the unreliability of the Ledeboer and Spaulding tests and the falsity of Defendants’ product superiority claims, Plaintiffs proffer the testimony of M.C. En-gelke. Dr. Engelke, an Associate Professor of Turfgrass Breeding, Genetics, and Management in the Texas A & M University system, criticized the Ledeboer and Spauld-ing tests because they collected all of their data during the spring season following a fall planting. Therefore, according to Engelke, the data was an unreliable indicator of the turfs year-round growth characteristics. This was especially so for Bonsai because, as conceded by Ledeboer himself, juvenile Bonsai planted in the fall has unusually slow establishment as a seedling and starts spring growth about a month later than similar dwarf tall fescues.
Dr. Engelke also summarized and analyzed the results of six other comparison tests, conducted by Plaintiffs and others, which, according to Engelke, disprove Ledeboer’s and Spaulding’s tests and Defendants’ superiority claims. With two exceptions (explained by factors other than growth rates), Dr. Engelke’s statistical analysis determined, within a 95% confidence level, that there was no significant difference in.clipping production between Bonsai, Shortstop, Marathon He, and some of the other varieties in Lede-boer’s test.
1. Relevance
The district court found Engelke’s testimony to be irrelevant. Engelke’s criticisms of the Ledeboer and Spaulding tests were irrelevant on the issue of falsity because both the bar-chart and the two-pot advertisements indicated the time period during which the data was collected. The district court found Engelke’s summary and analysis of-the six other tests irrelevant for two reasons:
First, the bar chart advertisement does not state on its face that it is based on a*1141 particular scientific test; therefore, the results of other tests are not material to the issue of the advertisement’s alleged falsity. In addition, none of these other tests was performed in Aurora, Oregon and plaintiffs offer no supporting explanation of why the tests are nevertheless probative.4
Plaintiffs correctly contend that the exclusion of Engelke’s testimony on relevance grounds amounted to an abuse of discretion.
Engelke’s criticisms of the Ledeboer and Spaulding test were excluded because the district court found that the disclosures of testing dates in the bar-chart and two-pot advertisements rendered those advertisements not literally false as a matter of law. Because, as will, be discussed in Part IV. Al.a., infra, a reasonable jury could conclude that the advertisements’ product superiority claims were intended to represent year-round growth (and that the accompanying test results were intended to support the claims) despite the disclosure, the district court’s exclusion of this portion of Engelke’s testimony was an abuse of discretion.
The exclusion of Engelke’s testimony concerning the six other tests was also an abuse of discretion. The first rationale for exclusion — that “the bar chart advertisement, does not state on its face that it is based on a particular scientific test” — is insufficient both as a factual and legal matter. A footnote in the bar chart clearly states that it is based upon “data compiled by KWS Research Farms.” Moreover, there is no requirement that a contested advertisement must. be based on a “particular test” before it can be challenged by conflicting test results.
Likewise, the second rationale — that none of the other tests were conducted in Aurora, Oregon — was also faulty. One of the tests was actually conducted within twelve miles of the Ledeboer site, during the same seasonal time period as Ledeboer’s test.
2. Reliability
Defendants also argue that, even if Engelke’s testimony is not properly excluda-ble on relevancy grounds, it is properly ex-cludable under Daubert I and Federal Rule of Evidence 702 because it is not based on scientifically valid principles. See Daubert I,
Defendants contend that Dr. Engelke’s testimony is. scientifically unreliable as a matter of law because he did not personally do any of the work upon which his opinions are based, he did not submit any portion of
The fact that Engelke’s opinions are based on data collected by others is immaterial; Federal Rule of Evidence 703 expressly ' allows such opinion testimony. Moreover, even if the tests were not conducted independently or subjected to peer review, these are only two of the ways Plaintiffs can demonstrate admissibility. Plaintiffs may also show that Engelke’s testimony is based on “the scientific method, as it is practiced by (at least) a recognized minority of scientists in the[] field.” Daubert II,
B. Ken Struman
Plaintiffs allege that, even if the bar-chart and two-pot advertisements are not literally false, they violate § ■ 43(a) because they actually deceive the consuming public. In support of this allegation, Plaintiffs have submitted the declaration of Ken Struman, a marketing research expert who attempted to gauge consumer reactions to the advertisements through a multi-phased survey.
One phase of the survey was targeted at homeowners who had recently or would soon install a lawn. Another was targeted at landscape contractors. The targets were first shown copies of the advertisements and asked open-ended questions such as, “What would you say is the most important message in what you have just read?” They were also asked “closed-end,” multiple choice questions. Based on the answers to the open-ended questions, Struman concluded that a solid majority of consumers interpreted the advertisements to mean that Bonsai saves time and requires less mowing. Based on the answers to the closed-end questions, Struman concluded that a majority of consumers interpreted the advertisement claims to be based on tests against other turfgrass products, and that the advertisements would influence the purchasing decisions of a majority of consumers.
The district court ruled that Struman’s declaration was insufficient to withstand summary judgment on the issue of consumer deception for two reasons: First, it was not probative on whether consumers “inferred that the growth rates on the bar chart represent year-round growth.”
Assuming the district court’s ruling was to exclude Struman’s testimony on relevancy grounds,
The district court’s other reason for rejecting Struman’s survey evidence is similarly faulty. Although a survey directed at land
On appeal, Defendants also argue that the survey evidence is inadmissible for the following reasons: (1) it was not designed to determine whether the advertisements influenced consumers’ purchasing decisions; (2) it was limited to the Southern California market; and (3) the questions were leading. These arguments are unavailing.
First, the multiple choice question asking whether or not Bonsai is preferable to other turfgrass products is probative on whether the advertisements influenced consumers’ purchasing decisions. Second, Defendants’ other objections — that the survey was only conducted in Southern California and asked leading questions — go only to the weight, and not the admissibility, of the survey. E. & J. Gallo Winery v. Gallo Cattle Co.,
C. Michael Wagner
In order to prove that the offending advertisements caused it injury, Southland
The district court disregarded Wagner’s testimony, ruling that Plaintiffs failed to raise a triable issue as to either causation or damages. Contrary to Defendants’ contentions, however, the district court did not rule Wagner’s testimony inadmissible.
On appeal, Defendants argue that Wagner’s model was unreliable because it did not consider what Bonsai sales would have been as a result of lawful competitive efforts; it assumed that Marathon II and Marathon lie were equivalent to Bonsai; it assumed that the market for non-dwarf tall fescues would hold for dwarf tall fescues; and it did not account for the fact that the drought and recession in Southern California may have affected different producers differently. These asserted defects, however, go to the weight, and not the admissibility, of Wagner’s testimony.
IV. Summary Judgment on Plaintiffs’ Lanham Act § 43(a) False Advertising Claim
A. Were Defendants’ Advertisements False?
1. Bar Chart Advertisements
a. Literal falsity
The district court found, as a matter of law, that the bar chart advertisements
We find the district court’s conclusion as to literal falsity to be erroneous because it failed to consider Defendants’ bar-chart advertisements in their full context. Cf. Castrol,
First, a reasonable jury could conclude that the bar chart is in fact intended to represent year-round growth characteristics of mature turfgrass. Relevant in such a determination is the following statement, located directly above the bar chart: “PROOF THAT BONSAI DWARF GROWTH HABIT SAVES TIME AND MONEY.” This claim would be nonsensical if the bar chart were only intended to represent the turfs growth characteristics during the spring months in the first year following germination. If the jury were to find that the bar chart is intended to represent year-round growth characteristics, Plaintiffs’ evidence, as well as Lede-boer’s own admissions regarding Bonsai’s unique spring growth characteristics, provides adequate support for the conclusion that this representation is literally false.
Likewise, a jury could reasonably conclude that the bar chart provides implicit support for the claims of “less mowing,” “reduced costs,” “less clippings,” and “slower growth,” and that the advertisements are therefore false because the Ledeboer test underlying the bar chart is “ ‘not sufficiently reliable to permit one to conclude with reasonable certainty that [it] established’ the claim made.” McNeil-P.C.C.,
Lastly, a jury could reasonably conclude that the claims of “less mowing,” “reduced costs,” “less clippings,” and “slower growth,” are false standing by themselves, without regard to the Ledeboer test. Contrary to the reasoning of the district court, Engelke’s analysis of the six comparison tests provides adequate support for such a conclusion, despite the fact that they were not conducted in Aurora, Oregon.
b. Consumer deception
As mentioned in Part III.B., supra, the district court ruled that Struman’s declaration was insufficient to withstand summary judgment on the issue of consumer deception for two reasons: First, it was not probative on whether consumers “inferred that the growth rates on the bar chart represent year-round growth.” Second, Struman’s survey was “primarily directed to the lay public” despite the fact that the advertisements “were directed for the most part to a professional audience.” This ruling was erroneous.
“As a general rule, summary judgment is inappropriate where an expert’s testimony supports the nonmoving party’s case.” In re Apple Computer Securities Litigation,
2. Two-Pot Advertisement
a. Literal falsity
Plaintiffs contend that the two-pot advertisement, like the bar-chart advertisement, is literally false because the two-pot test does not support the claims made, and because the claims made are themselves false. The district court found that the two-pot advertisement was not literally false as a matter of law because the advertisement “clearly states in large white print against a dark background that the advertisement compares
b. Consumer deception
For the same reasons discussed with respect to the bar-chart advertisement, a triable issue of fact exists as to whether consumers were materially deceived by the two-pot advertisement.
3. “Less is More” and “50% Less Mowing” Advertisement Claims
Plaintiffs contend that Defendants’ “Less is More” and “50% Less Mowing” advertisement claims, when read in context, are literally false. The district court granted summary judgment for Defendants, holding that the “Less is More” claim is nonactionable puffery because it “constitutes a general assertion of superiority rather than factual misrepresentation” and the “50% Less Mowing” claim is puffery because it “does not compare Bonsai to any specific competitor by name nor does it explain any basis for the claim.”
“‘Puffing’ is exaggerated advertising, blustering, and boasting upon which no reasonable buyer would rely and is not actionable under § 43(a).” 3 J. Thomas McCarthy, McCarthy on Trademarks and Unfair Competition § 27.04[4][d] at 27-52 (3d ed.1994). While product superiority claims that are vague or highly subjective often amount to nonactionable puffery, Cook, Perkiss and Liehe,
The district court was correct in concluding that Defendants’ “Less is More” claim is nonactionable puffery. It is precisely the type of generalized boasting upon which no reasonable buyer would rely. The “50% Less Mowing Claim,” on the other hand, is a specific and measurable advertisement claim of product superiority based on product testing and, as such, is not puffery. Castrol,
B. Were Plaintiffs Injured?
A plaintiff who successfully establishes a violation of § 43(a) is entitled to recover, “subject to the principles of equity, ... (1) defendant’s profits, (2) any damages sustained by the plaintiff, and (3) the costs of the action.” 15 U.S.C. § 1117(a) (Lanham Act § 35(a)). In addition to finding that Plaintiffs had faded to demonstrate falsity as a matter of law, the district court ruled that Defendants were entitled to summary judgment because Plaintiffs had failed to present sufficient evidence upon which a reasonable factfinder could conclude that Plaintiffs were injured ás a result of Defendants’ advertising. This ruling was erroneous.
First of all, “a competitor need not prove injury when suing to enjoin conduct that violates section 43(a).” Harper House, Inc. v. Thomas Nelson, Inc.,
Additionally, when, as in this case, a § 43(a) claim involves false advertising rather than “palming off,” courts have been more willing to allow monetary damages even without a showing of actual consumer confusion. See, e.g., PPX Enterprises v. Audiofidelity Enterprises,
The expenditure by a competitor of substantial funds in an effort to deceive consumers and influence ' their purchasing decisions justifies the existence of- a presumption that consumers are, in fact, being deceived. He who has attempted to deceive should not complain when required to bear the burden of rebutting a presumption that he succeeded.
U-Haul IV,
Even if Plaintiffs were not entitled to a presumption of actual consumer deception and reliance, the consumer survey testimony of Struman and the market analysis testimony of Wagner provides adequate evidence for a reasonable jury to conclude that Plaintiffs suffered actual injury as a result of Defendants’ advertisements. See, e.g., Brunswick Corp. v. Spinit Reel Co.,
The district court’s grant of summary judgment on the issues of causation and injury was erroneous.
Y. State-Law Claims
The district court granted summary judgment on all of Plaintiffs’ state-law claims based on its finding that Defendants’ advertisements were not false as a matter of law. Because a triable issue of fact exists as to whether Defendants’ advertisements were false, the district court’s reason for granting summary judgment on the state-law claims was erroneous. On appeal, Defendants raise several alternative bases for affirming the district court’s ruling with respect to Plaintiffs’ state law claims.
A. California Business & Professions Code
Defendants TMI & Genesis argue that summary judgment should be granted
B. Common-Law Unfair Competition
“The common law tort of unfair competition is generally thought to be synonymous with the act of ‘passing off one’s goods as those of another ... [, or] acts analogous to ‘passing off,’ such as the sale of confusingly similar products, by which a person exploits a competitor’s reputation in the market.” Bank of the West v. Superior Court,
C. Intentional Interference With Prospective Economic Advantage
Defendants TMI and Genesis argue that summary judgment on Plaintiffs’ intentional interference with prospective economic advantage claim was appropriately granted because Plaintiffs failed to demonstrate that Defendants’ interference was wrongful or that Plaintiffs suffered injury as a result of Defendants’ conduct. These are essentially the same arguments made against Plaintiffs’ Lanham Act claim; they are without merit.
VI. Defendants’ Respective Culpability
As alternative grounds for affirmance, KWS Seeds argues that it is not culpable for the allegedly offending advertisements. We agree that the uncontroverted evidence in the record demonstrates that neither KWS seeds nor Frederick Ledeboer were responsible for disseminating the offending advertisements. Accordingly, we affirm the district court’s grant of summary judgment with respect to these two defendants. While the other defendants also make various arguments as to why they are not culpable for certain of the offending advertisements, we leave these arguments for the district court to consider on remand.
CONCLUSION
We affirm the district court’s grant of summary judgment in favor of KWS Seeds, Inc. and Frederick B. Ledeboer and in favor of all other defendants with respect to Defendants’ “Less is More” claim and Plaintiffs’ cause of action for unfair competition. In all other respects, the judgment of the district court is reversed and the case remanded for further proceedings. No costs will be awarded in this appeal.
AFFIRMED IN PART, REVERSED IN PART, and REMANDED.
Notes
. There is a dispute about when Ledeboer conducted his test and whether the grass upon which the test was conducted was six or eighteen months old. In his November 1992 deposition, Ledeboer originally testified that he conducted the test between March and May 1989 on turf he had planted in 1987. However, in a September 1993 deposition, when confronted with the fact that he could not have planted the test plots in 1987 because he did not receive any Shortstop seed until August 1989, Ledeboer testified that he actually conducted the test between March and May 1990 on turf he had planted in September 1989. He confessed that the data sheets dated 1989 were actually prepared by him in 1992 after Plaintiffs had subpoenaed his records. According to Plaintiffs, this contradictory testimony indicates either that Ledeboer never conducted any test at all, or that he was trying to make it appear as though his test was conducted on mature turf while in fact it was deliberately staged to capitalize on Bonsai’s unique juvenile growth characteristics.
. Lanham Act § 43(a), codified at 15 U.S.C. § 1125(a), provides in pertinent part:
(1) Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any ... false or misleading representation of fact, which—
(A) ...
(B) 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,
shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act.
15 U.S.C. § 1125(a) (1988).
. Prior to the 1988 amendments to § 43(a), Pub.L. No. 100-667 § 132, 102 Stat. 3935, 3946, the interstate commerce requirement was associated with the defendant’s falsely advertised goods or services. After the 1988 amendments, it is the statement itself, rather than the falsely advertised goods or services, that must be used in interstate commerce. Compare 15 U.S.C. § 1125 (1982) with 15 U.S.C. § 1125 (1988).
. Only the Ledeboer test was conducted in Aurora, Oregon. The district court did not indicate why Engelke’s analysis of the other tests was irrelevant with respect to Spaulding’s two-pot test.
. Location (particularly latitude) and season are significant variables because they determine the length of the days during which the data is collected. Day length, or "photoperiod," has a significant impact on turf growth characteristics.
. The district court did not comment on Stru-man’s conclusions with respect to the two-pot advertisement. However, the court's criticisms with respect to the bar-chart advertisement apply equally with respect to the two-pot advertisement.
. To the extent the district court’s ruling was that, although admissible, the Struman survey was insufficient to withstand summary judgment, it will be addressed in Part IV.A.l.b. infra.
. Defendants TMI and Genesis argue that under Daubert, objections to the technical reliability of a survey do go to its admissibility. Defendants are correct that Daubert's holding applies to all expert testimony, not just testimony based on novel scientific methods. Daubert I,
. Because its request for compensatory damages is limited to the costs of conducting research to disprove Defendants’ advertising claims, Pick-seed's damage claim is not part of Wagner's analysis.