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EP Henry Corp. v. Cambridge Pavers, Inc.

United States District Court, D. New Jersey

April 18, 2019

EP HENRY CORP., Plaintiff/Counterclaim Defendant
v.
CAMBRIDGE PAVERS, INC., Defendant/Counterclaim Plaintiff.

          Craig S. Hilliard, Esq. Gene Markin, Esq. STARK & STARK, PC Attorneys for Plaintiff/Counterclaim Defendant

          John Michael Agnello, Esq. Christopher John Buggy, Esq. Melissa E. Flax, Esq. CARELLA BYRNE CECCHI OLSTEIN BRODY & AGNELLO, PC Attorneys for Defendant/Counterclaim Plaintiff

          OPINION

          JEROME B. SIMANDLE U.S. DISTRICT JUDGE

         I. INTRODUCTION

         Plaintiff EP Henry Corporation (“EP Henry” or “Plaintiff”) filed a Complaint against Defendant Cambridge Pavers, Inc. (“Cambridge” or “Defendant”) alleging, inter alia, that Cambridge engaged in false advertising in violation of the Lanham Act. (See generally Compl. [Docket Item 1].) Cambridge moved to dismiss the Complaint [Docket Item 8], which the Court granted in part and denied in part.[1] [Docket Item 21.]

         Cambridge filed a Counterclaim against EP Henry [Docket Item 26], which was subsequently amended. [Docket Item 51.] In its First Amended Counterclaim, Cambridge generally alleges that EP Henry engages in false advertising relating to its “Duraface technology” and “ColorTech Technology” in violation of the Lanham Act. [Id. at. ¶¶ 5, 10-12.]

         Currently pending before the Court is EP Henry's motion for judgment on the pleadings, pursuant to Rule 12(c), Fed. R. Civ. P., wherein EP Henry seeks to dismiss Cambridge's First Amended Counterclaim. [Docket Item 53.] The principal issue to be decided is whether Cambridge's advertising counterclaims are non-actionable as mere “puffery.” For the reasons explained herein, the Court finds that a number of EP Henry's statements at issue constitute puffery as a matter of law, but that it is plausible that the other statements, in context, do not. Accordingly, EP Henry's motion will be granted in part as to certain non-actionable statements in the First Amended Counterclaim and denied in part as to the remaining statements in the First Amended Counterclaim.

         II. BACKGROUND

         A. Factual Background

         EP Henry and Cambridge are both New Jersey businesses engaged in the manufacturing of concrete paving stones and are competitors in the industry. (First Amended Counterclaim [Docket Item 51] at ¶¶ 1-2, 7.) EP Henry markets and sells its pavers under the name “Durafacing, ” which was registered as a trademark with the United States Patent and Trademark Office. (Id. at ¶¶ 8-9.) It also uses the names “Durafacing Technology, ” “ColorTech, ” “COLORTECH, ” and “Superior Color Technology” to advertise and sell its paving stone products. (Id. at ¶¶ 8, 10.) EP Henry advertises its pavers to a “wide audience of consumers” through a variety of forms including catalogs, brochures, television commercials, and the internet. (Id. at ¶ 12.)

         According to Cambridge, in EP Henry's “marketing, advertising and promotional materials and presentations, [it] claims that its paving stone products . . . results in its paving stones being superior to those of its competitors, including Cambridge.” (Id. at ¶ 10.) Cambridge provides the following “non-exclusive” list of forty (40) phrases, words, and statements that EP Henry has used to advertise and promote its product, which Cambridge alleges are “unsubstantiated and per se false, literally false, denigrating, misleading, deceptive and/or misstatements of fact”:

• “The Durafacing Advantage . . . an exceptional richness and depth of color, with a smoother texture than you'll find anywhere else.”
• “Durafacing. A STEP ABOVE THE REST!”
• “There are many names and imitators - [Cambridge's] Armortec.”
• “EP Henry developed our state-of-the art Durafacing technology, allowing us to create pavers of UNRIVALED BEAUTY and durability.”
• “EP Henry pavers possess a smoother surface texture and RICHER COLOR than those of other manufacturers [including Cambridge], providing the most sophisticated and highest quality product.”
• “QUALITY, BEAUTY AND DURABILITY TO LAST A LIFETIME, only with Durafacing technology.”
• “Quality, beauty and durability to last a lifetime, only with Durafacing technology, only from EP Henry.”
• “Nothing surpasses EP Henry Pavers with Durafacing technology.”
• “Durafacing . . . A much smoother, denser surface.”
• “EP Henry [has] the BEST products.”
• “EP Henry's Durafacing technology was first in the market and has been imitated but never equaled.”
• “EP Henry's Durafacing process produces pavers with a smoother surface texture and richer color than those of other manufacturers [including Cambridge].”
• “EP Henry Duraface Pavers . . . unequalled durability, smooth texture and rich color.”
• “[O]ur state-of-the-art Durafacing technology, allowing us to create pavers of unrivaled beauty and durability.”
• “DURAFACE PAVERS . . . CONSTRUCTED TO LAST A LIFETIME.”
• “[M]arket leader; highest quality; ensures the best product and best finished product.”
• “Fact: EP Henry Authorized Hardscaping Distributors are the BEST.”
• “Fact: Only EP Henry can utilize the right process to create the best pavers ...

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