The opinion of the court was delivered by: Motley, District Judge.
OPINION RE PRELIMINARY INJUNCTION
FINDINGS OF FACT AND CONCLUSIONS OF LAW
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
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.
After hearing the evidence and weighing the testimony and
exhibits received in evidence, as well as the credibility of
the witnesses, the court ...