Keezio Group, LLC v. Mommy&Me LLC

Background

Keezio and Mommy&Me compete in online sales of aftermarket children’s playard mattresses. Keezio sells a mattress under the “hiccapop” product line on Amazon. After Mommy&Me began selling a similar mattress, Keezio alleged that Mommy&Me’s online advertisements made false statements about safety, quality, materials, and certifications, and falsely compared Mommy&Me’s mattress with Keezio’s product.

Keezio brought a federal false-advertising claim under the Lanham Act, a federal law that allows competitors to challenge misleading commercial advertising, along with related California claims. Keezio moved for a preliminary injunction, which is a temporary court order issued before final judgment. Keezio sought to stop the alleged false advertising and also sought to stop Mommy&Me from selling or distributing its competing mattress.

Preliminary-injunction standard

The court explained that Keezio had to show a likelihood of success on the merits, likely irreparable harm without an injunction, that the balance of hardships favored Keezio, and that an injunction would serve the public interest. An injunction could also be available if Keezio raised serious questions about the merits and the balance of hardships sharply favored it, while satisfying the other requirements. The court treated likely success on the merits as the most important factor.

Lanham Act standing

Before addressing the alleged false statements, the court considered whether Keezio had statutory standing under the Lanham Act. The court stated that Keezio had to show a commercial injury based on a product misrepresentation and an injury affecting its ability to compete with Mommy&Me.

The court found that Keezio and Mommy&Me were direct competitors because they sold directly competing products on Amazon. The court also considered evidence that after Mommy&Me stopped selling its mattress on Amazon, Keezio’s sales increased by 5,000 units per month, from 14,000 to 19,000. The court held that Keezio had shown a likelihood that it had Lanham Act standing, provided that it could show a misrepresentation.

Alleged safety statements

Keezio argued that Mommy&Me’s safety statements were false because the mattress did not comply with federal safety regulations. Mommy&Me submitted evidence that a Consumer Product Safety Commission-approved third-party tester evaluated the mattress, reported that it passed a 117-point test, and found that it met applicable safety standards.

Keezio did not dispute that the mattress had been tested by an approved tester. Instead, Keezio argued that the test was inadequate because it referred to ASTM F2933-21a rather than ASTM F2933-21. The court found that Keezio did not explain how the standards differed or why the difference made Mommy&Me’s statements about meeting the highest safety standards literally false.

Keezio also argued that the test report improperly stated that the product passed safety standards and that the mattress lacked a product-registration link required by a regulation. The court found that Keezio did not connect the registration-link issue to the alleged falsity of the advertisements. Keezio further argued that the report was prepared after Mommy&Me began selling the mattress, but the report stated that the mattress had been tested from August 28 through August 31, 2023, before sales began. The court therefore found that the report supported the conclusion that the mattress had passed a safety test before it was sold.

Keezio also asserted that the mattress was two inches thick even though the regulations limited the mattress to 1.5 inches. The court assumed that assertion was true for purposes of its analysis but found no admissible evidence showing that the two-inch mattress was unsafe. The court stated that regulatory noncompliance alone did not establish that Mommy&Me’s safety advertisements were literally false, particularly given the third-party tester’s report.

Material and certification statements

Keezio argued that Mommy&Me falsely advertised that its mattress used CertiPUR-US foam and was manufactured under the OEKO-TEX Standard 100 standards. The court found that Keezio offered no evidence that those statements were false beyond its own belief. Mommy&Me submitted evidence that its manufacturer used CertiPUR-US foam and was licensed to use the OEKO-TEX Standard mark. The court held that Keezio had not met its burden of proving falsity at the preliminary-injunction stage.

Comparisons to Keezio’s product

Keezio challenged Mommy&Me’s statements that “Their” mattress used “Standard Materials with average quality” and met only “Average safety standards.” The court found that Keezio had not shown that consumers would understand “Their” to refer to Keezio’s mattress. The court also found that “average quality” and “average safety standards” were too vague to be literally false.

The court described general, subjective claims that are unlikely to cause consumer reliance as “puffery,” meaning non-actionable promotional language rather than a specific factual claim. It concluded that the challenged “average” statements were puffery.

Disposition

The court held that Keezio had not shown a likelihood of success on the merits or serious questions going to the merits. It therefore did not consider the remaining preliminary-injunction factors and denied Keezio’s motion for a preliminary injunction. The order states that it disposes of Docket No. 12; it does not state a final disposition of the underlying claims.