A case about golf and advertising was too good for us not to write about. Recently, the U.S. District Court for the Central District of California issued a tentative preliminary injunction against GolfzonDeca, Inc. for marketing its GolfBuddy rangefinder. For you non-golfers, a rangefinder is a device that tells a golfer how far they are from the hole or other point on the course. Golfers continually strive for equipment that might help them lower their scores, and we are reminded of the prescient equipment tip from Arnold Palmer: “I have a tip that can take five strokes off anyone’s game. It’s called an eraser.” Plaintiff SkyHawke Technologies, LLC brought several Lanham Act claims alleging misrepresentations with respect to (1) the source of GolfBuddy’s GPS data and (2) the GolfBuddy’s accuracy. As a competitor in the rangefinder marketplace, SkyHawke contended that it was entitled to a preliminary injunction with respect to these false statements.
The Court rejected SkyeHawke’s argument that GolfBuddy’s accuracy claims (“ground-verified accurate maps,” “precision accuracy,” and “added accuracy”) were false advertising, instead finding that they were puffery. The Court also found that most of the challenged claims did not rise to the level of a literal falsity. These included the claim that GolfBuddy “walks golf courses to create ground-verified accurate maps, which increases the supreme accuracy of their GPS devices over competitors who simply use satellite imagery.” The Court agreed, however, that the following claim was literally false:
So GolfBuddy, our motto is Accuracy Matters. And the reason we say that is because every single course that’s in our database out of the 48,000 are walked by foot. So that means we send mappers to that course and they walk every single hole by foot with our own GPS devices.
Particularly compelling was Plaintiffs’ argument that these claims are directly contradicted by defendant’s sworn statement in a patent case that the GolfBuddy “primarily uses publicly available Google Earth map data as the course for the geographical data used to create its course data,” and that it only manually surveys the course “in some instances.
Given this evidence of literal falsity, the Court presumed that Plaintiff will suffer irreparable harm without a narrow preliminary injunction. The Court noted that, though the false claim was not a comparative statement with SkyeHawke’s rangefinder, “given the small market for golf rangefinder devices, the obvious falsity, and the very narrow scope of the proposed injunction,” traditional principles of equity warrant a finding of irreparable harm. Ultimately, the Court issued the narrow preliminary injunction precluding Defendants “from claiming that they walk every course in their map library (until they do walk every course).”
Important to take from this case is the fine line between claims that are literally false and those that are implicitly false. Though most of the claims that Defendants made in SkyHawke were not literally false, claims that are literally false bring a whole host of issues, including presumptions of irreparable harm and sweeping preliminary injunctions. Specifically, as the Court pointed out in this case, “[t]he evidenciary showing is lower for ‘literally false’ claims than it is for ‘likely to mislead’ claims.”
The authors and others at Venable have considerable experience advising clients on issues related to regulatory compliance, risk management, and other consumer protection concerns, in addition to representing clients in Lanham Act litigation and Federal Trade Commission investigations and law enforcement actions.
The authors have considerable experience playing golf, but lack expertise in that area.
 For at least one of the authors, that is often very far.
 We are considering applying for those jobs.