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January 28, 2003


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



The instant matter was subject of a prior Memorandum-Decision & Order, familiarity with which is assumed. See Nationwide Tarps, Inc. v. Midwest Canvas Corp., 228 F. Supp.2d 202 (N.D.N.Y. 2002). In short, Plaintiff Nationwide Tarps, Inc. ("NTI") commenced the instant action against defendant Midwest Canvas Corporation ("MCC") asserting claims for violations of section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a). Plaintiff contends that MCC's statements regarding the R value*fn1 of its Space-Age concrete insulating blankets are false, and therefore, violate section 43(a). Plaintiff complains that the true R value of MCC's blankets should reflect the insulating value of the blankets themselves, not the insulating value of the blankets plus the insulating value of a three inch airspace. Defendant denied the material allegations in the complaint and asserted various counterclaims.

NTI's prior motions for partial summary judgment on its Lanham Act claim, a preliminary injunction, a temporary injunction, and summary judgment on MCC's counterclaims were denied. Id. at 205-210. On October 29, 2002, the parties filed a stipulation discontinuing MCC's counterclaims with prejudice. (See Dkt. No. 67.)

MCC now moves for summary judgment pursuant to Fed.R.Civ.P. 56 seeking dismissal of NTI's complaint in its entirety and an award of attorneys' fees. NTI cross-moves for summary judgment seeking a permanent injunction prohibiting defendant from using advertising that displays the results of three inch airspace thermal resistance testing as the R value or effective R value of its blankets; an order requiring defendant to provide or pay for a corrective advertising campaign and an award of attorneys' fees. The motions were taken on the submissions without oral argument.


A moving party is entitled to summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The ultimate inquiry is whether a reasonable jury could find for the nonmoving party based on the evidence presented, the legitimate inferences that could be drawn from that evidence in favor of the nonmoving party, and the applicable burden of proof. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). In determining a motion for summary judgment, all inferences to be drawn from the facts contained in the exhibits and depositions "must be viewed in the light most favorable to the party opposing the motion." United States v. Diebold, Inc., 369 U.S. 654, 655 (1962); Hawkins v. Steingut, 829 F.2d 317, 319 (2d Cir. 1987). Nevertheless, "the litigant opposing summary judgment `may not rest upon mere conclusory allegations or denials' as a vehicle for obtaining a trial." Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438, 445 (2d Cir. 1980) (quoting SEC v. Research Automation Corp., 585 F.2d 31, 33 (2d Cir. 1978)).


A. NTI's Cross-Motion For Summary Judgment

NTI's cross-motion for summary judgment is denied for the reasons stated in the prior Memorandum-Decision & Order. Nationwide Tarps, Inc., 228 F. Supp.2d at 205-210. Plaintiff has not presented any new evidence or law warranting summary judgment in its favor.

B. MCC's Motion For Summary Judgment

Section 43(a) of the Lanham Act provides, in pertinent part, that:

Any person who, on or in connection with any goods or services . . . uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which . . . (B) in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person's goods, services, or commercial activities, shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act.

To prove a violation of section 43(a), NTI has the burden of demonstrating both that the challenged advertisement is false and that "the defendant[] misrepresented an `inherent quality or characteristic' of the product." S.C. Johnson & Son, Inc. v. Clorox Co., 241 F.3d 232, 238 (2d Cir. 2001) (quoting Nat'l Basketball Ass'n v. Motorola, Inc., 105 F.3d 841, 855 (2d Cir. 1997)). "`Falsity may be established by proving that (1) the advertising is literally false as a factual matter, or (2) although the ...

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