## Facts

- United Industries and Clorox competed in the roach-bait market; Clorox’s Combat was the leading brand and United’s Maxattrax was a newer entrant.
- United marketed Maxattrax with packaging stating it “Kills Roaches in 24 Hours.”
- United ran a television commercial (“Side by Side”) showing a split-screen comparison: Maxattrax on one side and a generic “Roach Bait” box on the other, resembling Combat’s packaging.
- The commercial asked: “Can you guess which bait kills roaches in 24 hours?” and displayed small-print text stating “Based on lab tests.”
- The ad depicted the Maxattrax-side kitchen as clean and calm, while the other side showed a chaotic kitchen suggesting a severe roach infestation.
- United filed a federal declaratory-judgment action seeking a ruling that its “Kills Roaches in 24 Hours” packaging claim did not violate Lanham Act § 43(a).
- Clorox counterclaimed under Lanham Act § 43(a), alleging the commercial was false or misleading because it implied Maxattrax could control an infestation within 24 hours and implied competing baits were ineffective within that period.
- Clorox moved for a preliminary injunction to stop the commercial; the district court denied relief, finding the core 24-hour claim literally true and finding insufficient proof of misleadingness and other injunction factors.
- Clorox appealed the denial of preliminary injunctive relief.

## Issues

1. Whether the district court abused its discretion in denying a preliminary injunction against the commercial under Lanham Act § 43(a).
2. Whether the commercial was literally false, or instead only allegedly misleading by implied messages about infestation control and competitor ineffectiveness.
3. If the ad was not literally false, whether Clorox produced sufficient evidence that consumers were likely to be misled.
4. Whether Clorox proved irreparable harm and satisfied the remaining preliminary-injunction factors.

## Decision

- The Eighth Circuit affirmed the denial of the preliminary injunction.
- The court held the district court did not clearly err in finding the explicit “kills roaches in 24 hours” claim literally true and supported by testing.
- The court held Clorox failed to show a sufficient likelihood of success on any implied-misleadingness theory because it did not provide adequate evidence that consumers were deceived.
- The court agreed Clorox failed to make an adequate showing of irreparable harm, and the balance of equities and public interest did not warrant preliminary relief.
- The court applied abuse-of-discretion review to the injunction ruling and clear-error review to underlying factual findings, and found no basis to disturb the district court’s evaluation of the commercial’s net message.

## Legal Principles

- A preliminary injunction requires a showing of likelihood of success on the merits, irreparable harm, and favorable equitable considerations; failure on likelihood of success or irreparable harm defeats preliminary relief.
- Under Lanham Act § 43(a), a literally true advertising statement is not actionable as “false” merely because a challenger proposes a harsher interpretation of the ad’s overall message.
- When an advertisement is not shown to be literally false, a claimant alleging implied misleadingness generally must present evidence (commonly consumer-survey or comparable proof) that the ad’s net impression is likely to mislead consumers.
- Appellate review of a denial of preliminary injunctive relief is deferential; absent clear error or legal misapplication, a district court’s assessment of an advertisement and the injunction factors will be upheld.

## Conclusion

The Eighth Circuit upheld the denial of preliminary injunctive relief because the challenged 24-hour killing claim was supported and literally true, and Clorox did not substantiate any implied-misleading theory with evidence of consumer deception or irreparable harm sufficient to justify an injunction.


United Indus. Corp. v. Clorox Co., 140 F.3d 1175 (8th Cir. 1998)