In its recent decision in Sussman-Automatic v. Spa World, the Eastern
District of New York dismissed a plaintiff's trademark
infringement claims, while allowing its claims for false
advertising based on the same conduct to survive. The
decision explores the boundaries between a false advertising
"bait-and-switch" scheme and the "initial interest
confusion" theory in Lanham Act cases.
The Mr. Steam Bait-and-Switch
The plaintiff, Sussman-Automatic ("Mr. Steam"), is the
maker of the "Mr. Steam" brand of shower and spa
products. According to the complaint, Spa World ran a website
which advertised the sale of Mr. Steam products. However, Spa
World didn't actually sell Mr. Steam products. Instead, when a
customer ordered a Mr. Steam product, customer would be told that
it was "temporarily out of stock," and then offered a Spa
World branded product at the same price. In the course of these
transactions, Spa World allegedly maligned Mr. Steam, while
claiming that its
