Spalding Laboratories, Inc. v. Arizona Biological Control, Inc.

MEMORANDUM *

Spalding Laboratories, Inc. (“Spalding”) appeals from the district court’s grant of judgment as a matter of law in favor of Arizona Biological Control, Inc., et. al. (“Arbico”). We have jurisdiction pursuant to 28 U.S.C. § 1291 . We reverse.

The jury could have reasonably concluded that Arbico’s advertisements were literally false or that the advertisements confused or misled a significant portion of their target audience. See, e.g., Southland Sod Farms v. Stover Seed Co., 108 F.3d 1134, 1144-45 (9th Cir.1997); see also 15 U.S.C. § 1125 (a) (setting forth elements of a Lanham Act violation for false or misleading advertising). For instance, Dr. Peterson testified that the number of emerged parasites would “definitely” be lower than the number of larvae contained in a pupa, a fact that would support a finding of literal falsity if Arbico’s claims were found to refer to emerged insects. The jury also could have reasonably concluded that Spalding’s shipments of Fly Predators contained as many as 10,000 to 15,000 larvae. Had the jury drawn that conclusion, it could have found Arbico’s advertisements to be literally false even if larvae, not emerged insects, were the…