Reference no: EM131473575

Question: Clorox Co. produces the top-selling brand of roach bait insecticide called Combat. United Industries is a smaller, relatively new entrant in the roach bait industry that sells the Maxattrax brand of roach insecticide. To promote the Maxattrax product, United produced and distributed a 15-second television commercial entitled "Side by Side." The commercial opened with two boxes sitting on kitchen countertops-one was Maxattrax and the other was the generic "Roach Bait" but was vaguely similar to packaging used in the Combat brand. A voice-over asked, "Can you guess which bait kills roaches in 24 hours?" The camera then panned to show two differing views of the kitchen. On the Maxattrax side, the kitchen was neat and orderly; on the generic brand's side, the room was dirty and disheveled, ostensibly as a result of the roach infestation.

The words "Based on lab tests" appeared on the bottom of the screen, and another voice-over stated: "To kill roaches in 24 hours, it's hot-shot Maxattrax. Maxattrax, it's the no-wait roach bait." Clorox asserted that this advertising campaign is not literally true and violates the Lanham Act's prohibition against false advertising because scientific tests conclude that Maxattrax (as well as all other roach bait products) can exterminate only those roaches that come into direct contact with the product during the 24-hour period. Clorox produced no evidence of consumer deception and therefore does not challenge the ad as being implicitly false or misleading. Clorox seeks a preliminary injunction enjoining United from using the ad in the future. Should the court issue the preliminary injunction? Why, or why not?