from the United States District Court for the Middle District
of Tennessee at Nashville. No. 3:18-cv-00447-Jon Phipps
McCalla, District Judge.
F. Miller, Nicholas R. Valenti, A. Grace Van Dyke James,
MILLER LEGAL PARTNERS PLLC, Nashville, Tennessee, for
Anthony Swafford, Rocklan W. King, III, Maia T. Woodhouse,
ADAMS AND REESE LLP, Nashville, Tennessee, Tara L. Swafford,
THE SWAFFORD LAW FIRM, Franklin, Tennessee, for Appellee.
Before: COOK, McKEAGUE, and WHITE, Circuit Judges.
termites, woodpeckers, and other pests damage engineered-wood
building siding? According to the district court, maybe. And
that "maybe" isn't enough to justify granting
Louisiana-Pacific a preliminary injunction to stop its
competitor from advertising Louisiana-Pacific's siding as
vulnerable to pest damage. Louisiana-Pacific needed to show
that it would likely succeed in proving the advertisement
unambiguously false under the Lanham Act and the Tennessee
Consumer Protection Act. It did not, so we affirm the
district court's denial of Louisiana-Pacific's
Corporation and James Hardie Building Products, Incorporated
compete for market share in the building siding industry.
Louisiana-Pacific produces "engineered-wood"
siding-wood treated with zinc borate, a preservative that
poisons termites; Hardie sells fiber-cement siding. To
demonstrate the superiority of its fiber cement, Hardie
initiated an advertising campaign called "No Wood Is
Good," proclaiming that customers ought to realize that
all wood siding-however "engineered"-is vulnerable
to damage by pests. Its marketing materials included (1)
digitally-altered images and video of a woodpecker perched in
a hole in Louisiana-Pacific's siding; and (2) nearby text
boasting both that "Pests Love It," and that
engineered wood is "[s]ubject to damage caused by
woodpeckers, termites and other pests."
campaign prompted Louisiana-Pacific to sue Hardie, alleging
that these ads (and one other) violated federal and state
prohibitions on false advertising, and move for a preliminary
injunction. The court heard three days of testimony before
partially granting and partially denying
Louisiana-Pacific's motion. Louisiana-Pacific appealed
the adverse rulings.
relevant here, the court determined that Louisiana-Pacific
failed to show a strong likelihood of success on the merits
of its false advertisement claims and denied the company an
injunction. R. 171, PageID 6519-20. We temper our deference
to the district court's denying a preliminary injunction
by reviewing any legal conclusions made in the process de
novo, findings of fact for clear error, and its ultimate
decision for abuse of discretion. Hall v. Edgewood
Partners Ins. Ctr., Inc., 878 F.3d 524, 527 (6th Cir.
reserve the extraordinary remedy of a preliminary injunction
for those cases where it is necessary to preserve the status
quo pending a final determination of the merits. See
Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22
(2008). In deciding whether to issue an injunction, a
district court weighs four factors: "(1) whether the
movant has a strong likelihood of success on the merits; (2)
whether the movant would suffer irreparable injury absent the
injunction; (3) whether the injunction would cause
substantial harm to others; and (4) whether the public
interest would be served by the issuance of an
injunction." S. Glazer's Distribs. of Ohio, LLC
v. Great Lakes Brewing Co., 860 F.3d 844, 849 (6th Cir.
2017) (quotation omitted). As long as a plaintiff
demonstrates some likelihood of success on the
merits, a court should balance rather than tally these