United Industries Corp. v. Clorox Co.

140 F.3d 1175 (8th Cir. 1998)

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Nature of the Case

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Facts

P and D both make roach bait insecticide products. D makes Combat, and P makes Maxattrax. P used a commercial called 'Side by Side.' It depicts a split-screen view with P's brand on the left and a generic 'Roach Bait' box that is vaguely similar to the packaging of the Combat brand sold by D on the right. An announcer asks the question: 'Can you guess which bait kills roaches in 24 hours?' The lights then come up as the camera pans beyond the boxes to reveal a clean, calm, pristine kitchen, uninhabited by roaches, on the Maxattrax side. On the other side, the kitchen is in a chaotic state: cupboards and drawers are opening, items on the counter are turning over, paper towels are spinning off the dispenser, a spice rack is convulsing and losing its spices, all the apparent result of a major roach infestation. At the same time, the message 'Based on lab tests' appears in small print at the bottom of the screen. The two roach bait boxes then reappear on the split-screen, and several computer-animated roaches on the 'Roach Bait' side appear to kick over the generic box and dance gleefully upon it. The final visual is of the Maxattrax box only, over which the announcer concludes, 'To kill roaches in 24 hours, it's hot-shot Maxattrax. Maxattrax, it's the no-wait roach bait.' The final phrase is also displayed in print on the screen. The entire commercial runs fifteen seconds. P sought a declaratory judgment that its ad did not constitute false advertising or unfair competition under the Lanham Act. D counterclaimed that the Maxattrax television commercial constituted false, deceptive, and misleading advertising in violation of section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a)(1)(B). D filed a motion for a preliminary injunction and the district court denied the motion. D appealed.