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FRUIT OF THE LOOM, INC. v. SARA LEE CORP.

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK


August 28, 1986

FRUIT OF THE LOOM, INC. and UNION UNDERWEAR COMPANY, INC., Plaintiffs,
v.
SARA LEE CORPORATION, d/b/a HANES KNITWEAR, Defendant

R. Owen, United States District Judge.

The opinion of the court was delivered by: OWEN

OPINION AND ORDER

OWEN, District Judge

 Plaintiffs Fruit of the Loom and Union Underwear Co. move to enjoin a thirty-second television commercial. According to defendant Hanes (a division of Sara Lee Corporation), the commercial truthfully states that Fruit of the Loom T-shirts shrink thirty-eight percent more than Hanes T-shirts. Fruit of the Loom does not take issue with the shrinkage percentage relationship between the two T-shirts. Rather, it contends that the commercial is facially false and creates the misleading impression that (1) the Fruit of the Loom T-shirt itself shrinks thirty-eight percent after five washings, and (2) that this shrinkage factor is applicable to all Fruit of the Loom products. Plaintiffs thereupon bring this action pursuant to Section 43(a) of the Trademark Act of 1946 (the Lanham Act), 15 U.S.C. 1125 (a). Plaintiffs present a survey to the Court in support of their argument.

 I have observed the commercial several times as well as studied the still photographs presented and the storyboard prepared from the commercial. As is stated below, I do not find the commercial to be facially false. Further, while as a single viewer I am substantially concerned that the commercial may have quite misleading aspects, *fn1" under the authorities as I understand them, my own view is not determinative as to the possibility of misleading -- as opposed to facially false -- advertising. *fn2"

 Given what is before me, I am not sufficiently satisfied that the advertisement should be restrained. As to any facial falseness in the commercial, I note that the relative shrinkage rate communicated in the audio aspect of the commercial is not false; moreover, only T-shirts are specifically depicted in the commercial. Nor is anything else in the commercial facially false. To the extent plaintiffs also claim that the advertisement is misleading and attempt to support this with a survey, I cannot say that plaintiffs' survey is sufficiently persuasive. The survey's methodology is questionable. To begin, there are internal inconsistencies in the survey's results. *fn3" Further, given the margin of error in a survey of this type, I am not convinced that the survey's results are significant. Given this, it would be improper for me to grant plaintiffs the extraordinary relief that they seek in this motion, which would obviously work an enormous dislocation of defendant's advertising strategy at this concededly critical time.

 For the foregoing reasons, the motion is denied.

 R. Owen, United States District Judge


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