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AM. EXP. TRAVEL REL. SERV. v. MASTERCARD

October 23, 1991

AMERICAN EXPRESS TRAVEL RELATED SERVICES COMPANY, INC., PLAINTIFF,
v.
MASTERCARD INTERNATIONAL INCORPORATED AND LINTAS: N.Y., DEFENDANTS.



The opinion of the court was delivered by: Motley, District Judge.

OPINION RE PRELIMINARY INJUNCTION

FINDINGS OF FACT AND CONCLUSIONS OF LAW

I. Introduction

This case came before the court on a motion from plaintiff, American Express Travel Related Services Company, Inc., to enjoin its competitor, defendant MasterCard International, Inc., and MasterCard's advertising agency, defendant Lintas: N Y, from broadcasting a television commercial called "Directions." "Directions" is a humorous advertisement depicting a man ("Man # 1") trying to find a location where he can get cash with his American Express Card. After asking seven people for directions, and receiving a variety of responses, he is left at the end of the commercial cashless and frustrated. Meanwhile, the MasterCard holders depicted are able to access cash as an announcer states "with MasterCard, you can get cash just about anywhere. At nearly 200,000 bank branches and 60,000 ATMs."

Plaintiff filed a complaint against defendants on October 1, 1991 claiming that "Directions" violated the Lanham Act, 15 U.S.C. § 1125(a), and various state laws, and requesting preliminary and permanent injunctive relief. Plaintiff alleged that the advertisement was false in four respects. First, plaintiff alleged that "Directions" indicates that it is impossible to get cash with the American Express Card. Plaintiff pointed to the sequence where, in response to the query "Cash?" by Man # 1 holding up the American Express Card, Woman # 3 says "You know, the thing is, not with that card. That's the problem."

Second, plaintiff alleged that the announcer's statement "Looking for cash without Mastercard can lead you nowhere," coupled with the accompanying visual depiction of Man # 1 driving across a trestled bridge over river heavily lined with trees, falsely indicates that it is virtually impossible to get cash with the American Express Card.

Third, plaintiff alleged that the commercial falsely states that an American Express Card holder must travel to remote locations to get cash with her card. Besides the depiction of the bridge, plaintiff cited one set of directions given to Man # 1 which informed him to "go through [a] corset store" where "in back, there's a dirt road."

Fourth, plaintiff alleged that the advertisement falsely states that it is difficult to get cash with the American Express Card, either because the locations are hard to find or because it is hard to find directions to the locations.

At a conference on October 2, 1991 attended by all parties, plaintiff's motion for a temporary restraining order was granted and a preliminary hearing was scheduled for October 9, 1991 to decide whether a preliminary injunction should issue. The hearing was held on October 9-11, 15, 1991.

Although plaintiff admitted that the modifications addressed its first two allegations, plaintiffs claimed that "Directions 2" was still false in two ways: (1) that the new commercial falsely states that an American Express Card holder must travel to remote locations to get cash with her card, and (2) that it falsely states that is difficult to get cash with the American Express Card. Therefore, plaintiff continued to seek an injunction with respect to the new commercial.

On October 10, 1991, the court ruled orally that the temporary restraining order applied to both "Directions" and "Directions 2" while the outcome of the hearing was pending. (Tr. 253).

II. Findings of Fact

After hearing the evidence and weighing the testimony and exhibits received in evidence, as well as the credibility of the witnesses, the court ...


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