A major shift in the Westwood advertising campaign, however, is observable from a review of the Brochure and the Card. Both the Brochure and the Card use the phrase "WestPro Protection System". However, the copy on each of these documents expands the definition of the WestPro Protection System beyond that set forth in the Trade and Consumer Advertisements. Significantly, the Brochure describes the WestPro Protection System as covering the initial selection and inspection of the base metal, intermediate steps and finally "to further enhance the beauty and durability of the lamp" a "newly formulated lacquer that protects the lamp and provides an unequaled finish" is applied. In conclusion, the Brochure states "Our WestPro Protection System is superior quality control, superior manufacturing technology, a superior lighting product." The Card makes similar points although not in the same form.
A review of the chronology of the development of WestPro and the understanding of it by Westwood's President and Chief Executive Officer and by Westwood's Manager of Process Engineering (the person who developed WestPro) appears to differ from the understanding of Westwood's counsel. Moreover, the advertising itself is not consistent in definition or scope. Additionally, the testing appears to have embraced WestPro as it was understood by Westwood officials and advertised to the trade and consumers.
To obtain a preliminary injunction Stiffel must demonstrate that "irreparable injury will occur if relief is not granted . . . and that there is a reasonable probability of [its] eventual success on the merits." Continental Group, Inc. v. Amoco Chemicals Corp., 614 F.2d 351, 356-57 (3d Cir. 1980). Accord, Cerro Metal Products v. Marshall, 620 F.2d 964, 972-73 (3d Cir. 1980); System Operations, Inc. v. Scientific Games Development Corp., 555 F.2d 1131, 1141 (3d Cir. 1977); Delaware River Port Authority v. Transamerican Trailer Transport, Inc., 501 F.2d 917, 919-20 (3d Cir. 1974).
A. Likelihood of Success
Section 43(a) of the Lanham Trademark Act, 15 U.S.C. § 1125(a), prohibits false and misleading advertising in connection with goods or services transported in interstate commerce.
See American Home Products Corp. v. Johnson & Johnson, 577 F.2d 160 (2d Cir. 1978); L'Aiglon Apparel, Inc. v. Lana Lobell, Inc., 214 F.2d 649 (3d Cir. 1954); Toro Co. v. Textron, Inc., 499 F. Supp. 241 (D. Del. 1980). The Act applies to false and misleading claims made to the trade as well as to consumers in general.
To carry its burden, Stiffel must show that the Westwood advertising at issue is either false on its face or misleading. As stated by the Second Circuit: "When a merchandising statement or representation is literally or explicitly false, the court may grant relief without reference to the advertisement's impact on the buying public." Coca-Cola Co. v. Tropicana Products, Inc., 690 F.2d 312, 317 (2d Cir. 1982). Yet when the advertising under attack is not so clearly false, the court's inquiry must focus on the advertisement's tendency to deceive those at whom it was directed: "Whether or not the statements made in the advertisements are literally true, § 43(a) of the Lanham Act encompasses more than blatant falsehoods. It embraces 'innuendo, indirect intimations, and ambiguous suggestions,' evidenced by the consuming public's misapprehension of the hard facts underlying an advertisement." Vidal Sassoon, Inc. v. Bristol-Myers Co., 661 F.2d 272, 277 (2d Cir. 1981), quoting, American Home Products Corp., 577 F.2d at 165.
Stiffel need not prove an intent to deceive on the part of Westwood to establish a violation of Section 43(a) of the Lanham Act. See, Johnson & Johnson v. Carter-Wallace, Inc., 631 F.2d 186, 189 (2d Cir. 1980). However, Stiffel must show the advertising is "likely to influence the purchasing decision." Skil Corp. v. Rockwell Int'l Corp., 375 F. Supp. 777, 783 (N.D. Ill. 1974). Nor must Stiffel prove consumers were in fact deceived or that sales were actually diverted. See, Ames Publishing Co. v. Walker-Davis Publications, Inc., 372 F. Supp. 1, 12 (E.D. Pa. 1974); See also John Wright, Inc. v. Casper Corp., 419 F. Supp. 292, 325 (E.D. Pa. 1976), aff'd and rev'd in part on other grounds, Donsco, Inc. v. Casper Corp., 587 F.2d 602 (3d Cir. 1978). As stated by the Third Circuit,
there seems to be no requirement that purchasers actually be deceived, but only that the false advertisements have a tendency to deceive. This seems to be the result desired by Congress in that Section 43(a) confers a right of action upon any person who "believes that he is or is likely to be damaged" by defendant's practices. While it would be going too far to read the requirement of customer reliance out of this section so far as damages are concerned, we believe that this is a recognition that, as with most equitable relief by way of injunction, Section 43(a) may be asserted upon a showing of likelihood of damage without awaiting the actuality.