"Tests Prove" Challenge Fails to Stop Competitor's Diaper Pail Superiority Claim

Denying Playtex's motion for preliminary injunction, a Los Angeles federal court decision illustrates the limits of attacking your adversary's product test methodology instead of also presenting your own product testing data in Lanham Act cases. In Munchkin, Inc. v. Playtex Products LLC, Playtex alleged that competitor Munchkin's laboratory test did not reliably support its superiority claim regarding odor control for diaper pails. Playtex makes the "Diaper Genie" and Munchkin makes a newer product, "Arm & Hammer Diaper Pail" — both competing diaper disposal products. Munchkin's advertising claim of superior odor control cited a "laboratory test," and Playtex challenged Munchkin's test methodology. In Lanham Act false advertising cases, it is well established that a when an advertising claims cites to a test or study, the plaintiff can prevail by proving that the cited test does not reliably support the claim made. The claim is an "establishment claim," also known as a "tests prove" claim, and Playtex could prevail by proving that Munchkin's laboratory test is not sufficiently reliable to establish superior odor control. Notably, Playtex did not present its own "counter" test to refute the Munchkin test; Playtex relied solely on attacking Munchkin's methodology Munchkin's laboratory used an ammonia soaked diaper and mechanically measured the ammonia emitted from the diaper at five time intervals. Ammonia was used as the "proxy" for diaper odor, and Munchkin argued that the analytical measurement avoided the subjectivity of using "human sniffers" in a sensory perception test. Playtex argued that Munchkin's test did not "replicate real world conditions," which is often a requirement for product testing claims. Playtex identified many differences between the test conditions and the real world experience of using diaper pails, such as the difference between actual consumers smelling odor and analytical measurement; the amount of time the unit's lid was artificially propped open during the test; and the fact that soiled diapers emit many more odors than ammonia. Munchkin responded that its test was objective and powerful, and that its product scored better at capturing the ammonia odor compared to Playtex's product at each of the five testing intervals, which enhanced the confidence level associated with the superiority claim. Although Playtex advanced a thorough argument using well-established "tests prove" concepts and precedents, Munchkin's laboratory test results — showing head-to-head superior odor control for Munchkin at each of the five testing intervals — appeared to convince the court that Munchkin's product in fact had some odor trapping advantage over Playtex's product. At a minimum, Playtex failed to prove otherwise. Munchkin's advertising also disclosed that it was a "laboratory test," not a real world test. The court denied Playtex's request for a preliminary injunction. The case shows that it may be risky to attack your opponent's product test without also doing your own "counter" test. Had Playtex offered its own testing with a different result, such as a sensory perception test using real world conditions, the court would have faced a more difficult choice. But it did not. The case is similar to Lanham Act false advertising cases involving surveys, where one party attacks the survey methodology used by its opponent but fails to offer a competing survey. It is not difficult to poke holes in your opponent's scientific test; however, the cases often turn on affirmative evidence. Litigants should do more than merely critique and expose methodological weaknesses of their adversary's test. To be safe, litigants should affirmatively demonstrate the proposition at issue through scientific evidence of their own. – Randy Miller

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