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"New and improved" claim leads to old result

By Rebecca Tushnet

Robert Bosch LLC v. Pylon Manufacturing Corp., -- F.Supp.2d --, 2009 WL 2001030 (D. Del.)

Bosch sued Pylon for patent infringement and false advertising. Pylon makes and sells windshield wiper blades under the Michelin brand name. Bosch alleged that two statements from Pylon?s website were false: ?Michelin?s expertise ... has inspired the development of a high performance, frameless all-weather wiper blade with many innovative features and benefits, including ... Advanced Frameless Design ... and Integrated High-Downforce Spoiler? and ?[t]he latest Michelin wiper blades on the market are all new and improved ... adding functional features such as spoilers for improved wiper performance.?

The court read the complaint to allege that the statements ?new and improved,? ?innovative,? and ?development? were false advertising because Bosch developed the technology, which therefore could not be ?new and improved? or ?innovative.? Building on post-Dastar precedent, the court held that ?false attribution of authorship? (or inventorship) isn?t actionable under §43(a)(1)(B) (and I register my usual note that this is an extension, probably an unwarranted one, of Dastar itself, which construed §43(a)(1)(A)). Thus the ?development? claim failed.

That left the new/improved/innovative claims. In context, this was not false advertising, merely puffing?it didn?t list specific features of the wiper blades. ?Improved? and ?innovative? ?are opinions and cannot be proved to be false.? (Comment: Really? Certainly there are cases in which such claims could be proved to be false. Suppose all defendant did was relabel existing wipers, in production for ten years, ?new and improved.?) Even ?new,? which includes a time component, was ?classic puffery? (citing Laitram Machinery, Inc. v. Carnitech A/S, 884 F.Supp. 1074, 1083 (E.D.La.1995) (statement that machines are ?new and improved? is puffery) and Outdoor Technologies, Inc. v. Vinyl Visions, LLC, 83 U.S.P.Q.2d 1418, 2006 WL 2849782, at *4 (S.D.Ohio 2006) (?phrases such as ?best,? ?new and improved,? or ?redesigned and improved?? have all been held to be puffery)).

Result: motion to dismiss granted.

Full post as published by 43(B)log on July 14, 2009 (boomark / email).