EP Henry Corp. v. Cambridge Pavers, Inc.
civil false advertising counterclaim under Lanham Act ยง 43(a)(1)(B) by competitor Cambridge against EP Henry; EP Henry's Rule 12(c) motion for judgment on the pleadings granted as to eight listed statements (puffery) and denied as to the rest (result: mixed)
Facts
- 8 False or misleading factual representation not law
"Puffery is an exaggeration or overstatement expressed in broad, vague, and commendatory language."
- 8 False or misleading factual representation satisfied pleaded
"[U]nlike puffery, 'false claims that explicitly or implicitly address product attributes of importance to customers and make statements that are measurable by comparative research are not puffery.' "
- 8 False or misleading factual representation not law
The Court finds that Cambridge's allegations about EP Henry's statements regarding the "beauty" of its products are subjective unprovable statements and, therefore, constitute non-actionable puffery.
- 8 False or misleading factual representation not law
Specifically, EP Henry states that it creates pavers of "unrivaled beauty," that its pavers have "beauty ... to last a lifetime," and that EP Henry uses a process that "intensifies beauty," and sets the "standard for beauty."
- 8 False or misleading factual representation not law
Thus, when EP Henry represents that its products are the "best," or that its "Authorized Hardscaping Distributors are the best," it represents the type of exaggerated statement regularly made by companies, which is unverifiable.
- 8 False or misleading factual representation not law
Furthermore, its statement that Durafacing is "a step above the rest" and that "nothing surpasses" its pavers, equally represent statements of mere puffery pertaining to EP Henry's own subjective opinion.
- 8 False or misleading factual representation not law
These statements of superiority are non-actionable under Section 43(a) of the Lanham Act.
- 8 False or misleading factual representation satisfied pleaded
Thus, EP Henry combines certain representations about its pavers with claims about its superior manufacturing process that "only EP Henry" can provide.
- 8 False or misleading factual representation satisfied pleaded
Whether these statements about the lifetime durability and quality of its pavers are false is plausibly demonstrable by objective testing and analysis of the products, and therefore actionable at this stage.
- 8 False or misleading factual representation satisfied pleaded
Finally, EP Henry's representations that its pavers, "provide a slip-resistant walking surface," "provide a non-skid, non-slip surface that is safer," and are "stain resistant," are statements of fact that explicitly address attributes of EP Henry's pavers that are important to customers and, furthermore, are potentially measurable.
- 8 False or misleading factual representation satisfied pleaded
Moreover, a number of EP Henry's allegedly-false claims are made in comparison to another competitor's technology, including Cambridge's "Armortec."
- 8 False or misleading factual representation satisfied pleaded
Again, statements of side-by-side comparisons of the attributes of competitive products are generally statements of fact, testable by comparative research, and therefore actionable at this stage of the pleadings.
- 8 False or misleading factual representation satisfied pleaded
The Court recognizes that any individual consumer might disregard EP Henry's statements as exaggerations or vague overstatements.