The Honorable Charles A. Shaw, United States District Judge for the Eastern 1 District of Missouri. United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 97-3492

___________ United Industries Corporation, * a corporation, * * Appellee, * Appeal from the United States * District Court for the
v. * Eastern District of Missouri. * The Clorox Company, * * Appellant. *

___________ Submitted: January 16, 1998

Filed: April 13, 1998

___________ Before BOWMAN, WOLLMAN, and HANSEN, Circuit Judges.

___________ WOLLMAN, Circuit Judge.
The Cl orox Company appeals from the district court’s denial of its motion for 1 pr eliminary injunctive relief brought within the context of its counterclaim agains t United Industries C orporation for false advertising under section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a). We affirm.As explained by the district court: “Roach bait products . . . consist of smal l 2 plasti c bait stations which contain roach-attracting food ingredient agents an d insect icide. They are designed with openings, which permit roaches to enter th e station, to ingest or come into contact with the insecticide, and then to exit the unit and die.” Findings of Fact, Conclusions of Law and Order at 1-2. Clorox’s amended answer and counterclaim also alle ged unfair competition and 3 injurious falsehood claims under the common law. The district court did not address these claims in its memorandum opinion and Clorox did not raise them in its brief or during oral argument. Therefore, we will not consider them for purpo ses of this appeal. -2- I.

Clorox and United Industries are competing producers of roach bait insecticide products. C lorox manufactures and sells Combat, the top-selling brand of roach bait,

2 while Uni ted Industries manufactures and sells the Maxattrax brand of roach bait, a smal land relatively new participant in this market. United Industries initiated thi s acti onagainst Clorox, seeking a declaratory judgment that the packaging of it s Max attrax product, which predominantly asserts that it “Kills Roaches in 24 Hours, ” did not constitute false advertising or unfair competition under the Lanham Act. I n respons e, Clorox moved to dismiss the complaint, contending that no actual case o r controversy existed between the two parties regarding the packaging claims. Shortly thereaft er, however, Clorox withdrew its motion to dismiss and filed an answer an d
coun terclaim, which subsequently was amended. Clorox’s amended counterclai m al leged, primarily, that a Maxattrax television commercial that United Industries ha d recently released for broadc ast constituted false, deceptive, and misleading advertising in violation of section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a)(1)(B). 3

The commercial at issue, entitled “Side by Side” by the advertising firm tha t produc ed it, depicts a split-screen view of two roach bait products on two kitche n countertops. The lighting is dark. On the left, one sees t he Maxattrax box; on the right, a generic “Roach Bait” box that is vaguely similar to the packaging of the Combat-3-

brand sold by Clorox. An announcer asks the question: “Can you guess which bait kills roaches in 24 hours?” The lights then come up as the camera pans beyond the boxes to reveal a clean, calm, pristine kitchen, un inhabited by roaches, on the Maxattrax side. On the other side, the kitchen is in a chaotic state: cupboards and drawers are opening, it ems on the counter are turning over, paper towels are spinning off the dispenser, a sp ice rack is convulsing and losing its spices, all the apparent result of a major roac h infestation. At

the same time, the message “Based on lab tests” appears in small print at the bottom of the screen. The two roach bait boxes then reappear on the split-screen, and several computer-animated roaches on the “Roach Bait” side appear to kick over the generic box and dance gleefully upon it. The final visual is of the Maxattrax bo x only, over which the announcer concludes, “To kill roaches in 24 hours, it’s hot-sho t Maxattrax. Maxa

ttrax, it’s the no-wait roach bait.” The final phrase is also displayed in print on the screen. The entire commercial runs fifteen seconds.
Clorox filed a motion for a preliminary inju nction against this commercial. After expedited discovery and a two-day hearing, the district court denied the motion.

II.
In deciding a motion for a prelimin ary injunction, district courts are instructed to consider what have come to be known as the Dataphase factors:
(1) The probability of success on the merits; (2) The threat of irreparable harm to the movant; (3) The balance between this harm and the injury that granting the injunction will inflict on other interested parties; and (4) Whether the issuance of an injunction is in the public interest.

Sanborn Mf

g. Co., Inc. v. Campbell Hausfeld/Scott Fetzer Co. , 997 F.2d 484, 485-86 (8th Cir. 1993) (citing Dataphase Sys., Inc. v. C L Sys., Inc. , 640 F.2d 109, 114 (8th-4-

Cir. 1981) ( en banc)); see also Minnesota Mining and Mfg. Co. v. Rauh Rubber, Inc. , 130 F.3d 1 305, 1307 (8th Cir. 1997). No single factor in itself is dispositive; rather , eac h factor must be considered to determine whether the balance of equities weigh s toward granting the injunction. Se e Sanborn , 997 F.2d at 486; Calvin Klein Cosmetics Corp. v. Lenox Lab., Inc. , 815 F.2d 500, 503 (8th Cir. 1987).

We have no ted that by enacting the Lanham Act, Congress apparently intended to encou rage competitors to seek injunctions as a method of combating fals e advertising, and, in such cases that ultimately prove to have merit, in junctive relief is not to be issued reluctantly. See Black Hills Jewelry Mfg. Co. v. G old Rush, Inc. , 633 F.2d 746, 753 n.7 (8th Cir. 1980). With regard to a preliminary injunction, however, th e burd en on the movant is heavy, in particular where, as here, “granting the preliminary injunctio n will give [the movant] substantially the relief it would obtain after a trial on the mer its.” Sanborn , 997 F.2d at 486 (quoting Dakota Indus., Inc. v. Ever Best Ltd. , 944 F.2d 438, 440 (8th Cir. 1991)). Caution must therefore be exercised in a court’s deliberation, and “the essential inquiry in weighing the propriety of is suing a preliminary injunction is whether the balance of oth er factors tips decidedly toward the movant and the movant ha s also raised questions so serious and difficult as to call for mor e deliberate investigation.” General Mills, Inc. v. Kellogg Co. , 824 F.2d 622, 624-25 (8th Cir. 1987).

A distric t court has broad discretion when ruling on requests for preliminary injunc tions, and we will reverse only for clearly erroneous factual determinations, a n error of law, or an abuse of that discretion. See Sanborn , 997 F.2d at 486 (citing Calvin Klein , 815 F.2d at 503). A district court’s finding is “clearly errone ous” when, although evidence may exist to support it, upon review of the entire record we are left with the definite and firm conviction that error has occurred. See Prufrock Ltd., Inc. v. Lasater , 781 F.2d 129 , 133 (8th Cir. 1986); Anderson v. City of Bessemer City , 470 U.S. 564, 573-74 (1985). This deferenti al standard of review “rests upon the unique opportunity afforded the trial court judge to evaluate the credibility of witnesses andThe text of section 43(a) of the Lanham Act, codified at 15 U.S.C. § 1125(a), 4 provides in pertinent part: (1) Any person who, on or in connection wit h any goods or services, -5- to weigh the evidence.” Inwood Lab., Inc. v. Ives Lab., Inc. , 456 U.S. 844, 855 (1982).

A.

In our analysis of the Dataphase factors, we begin by assessing the probability of Clorox’s ultimate success on the merits. At the early stage of a preliminary injunction motion, the s peculative nature of this particular inquiry militates against any wooden or mat hematical application of the test. See Calvin Klein , 815 F.2d at 503

. Instead, “a court should flexibly weigh the case’ s particular circumstances to determine whether the balance of equities so favors the movant that justice requires the court to intervene to preserve the status quo until the merits are determined.” Id. (quotin g Dataphase , 640 F.2d at 113). Clorox asserts Lanham Act violations and seeks , primarily, permanent injunctive relief against the alleged false claims contained in the Maxattrax “Side by Side” commercial.
Section 43(a) of the Lanham Act
The Lanham Act was intended, in part, to protect persons engaged in commerce against false advertising and u nfair competition. See Two Pesos, Inc. v. Taco Cabana, Inc. , 505 U.S. 763, 767-68 (1992) (quoting 15 U .S.C. § 1127); 3 J. Thomas McCarthy, McCart hy on Trademarks and Unfair Competition § 27:25 at 27-40 (West Grou p 1997). In particular, the Act prohibits commercial advertising or promotion tha t misrepresents the nature, characteristics, qualities, or geographic origin of th e advertiser’s or another person’ s goods, services, or commercial activities. See RhonePoulenc Rorer Pharm., Inc. v. Marion Merrell Dow, Inc. , 93 F.3d 511, 514 (8th Cir

. 1996) (citing 15 U.S.C. § 1125(a)(1)(B)); Sanborn , 997 F.2d at 486. 4or any container for goods, uses in commerce any word, term, name ,

sym bol, or device, or any combination thereof, or any false designatio n of origi n, false or misleading description of fact, or false or misleadin g representation of fact, which—

. . . . (B) in commercial advertising or promotion, misrepre sents the nature, charact eristics, qualities, or geographic origin of his or her or anothe r person’s goods, services, or commercial activities,
shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act.
-6- To establish a claim under the false or deceptive advertising prong of the Lanham Act, a pl aintiff must prove: (1) a false statement of fact by the defendant in a commercial advertisement about its own or another’s product; ( 2) the statement actually deceived or has the tendency to deceive a substantial segment of its audience; (3) the decep tionis material, in that it is likely to influence the purchasing decision; (4) th e defend ant caused its false statement to enter interstate commerce; and (5) the plaintiff has been or is likely to be injured as a result of the false statement, either by direc t diversion of sales from itself to defendant or by a loss of goodwill associated with its products. See Southland Sod Farms v. Stover Seed Co. , 108 F.3d 1134, 1139 (9th Cir. 1997); Johnson & Johnson-Merck Consumer Pharm. Co. v. Rhone-Poulenc Rore r Pharm., Inc. , 19 F.3d 125, 12 9 (3d Cir. 1994). In addition, to recover money damages under the Act, a “[p]laintif f must prove both actual damages and a causal link between defendant’s violation and those damages.” Rhone-Poulenc , 93 F.3d at 515.
The false statement necessary to establis h a Lanham Act violation generally falls into o ne of two categories: (1) commercial claims that are literally false as a factua l matt er; and (2) claims that may be literally true or ambiguous but which implicitl y convey a false impression, are misleading in context, or likely to deceive consumers

. See Southland , 108 F.3d at 1139; National Basketball Ass’n v. Motorola, Inc. , 105-7-

F.3d 841, 855 (2d Cir. 1997); Abbott Lab. v. Mead Johns on & Co. , 971 F.2d 6, 13 (7th Ci r. 1992). Many claims will actually fall into a third category, generally known a s “puffer y” or “puffing.” Puffery is “exaggerated advertising, blustering, and boastin g upon whic h no reasonable buyer would rely and is not actionable under § 43(a). ” Southland , 108 F.3d at 1145; see also Castrol Inc. v. Pennzoil Co. , 987 F.2d 939, 945 (3d Cir. 1 993). Nonactionable puffery includes representations of product superiority that are vague or highly subjective. S ee Southland , 108 F.3d at 1145; Cook, Perkiss & Liehe, In c. v. Northern California Collection Serv., Inc. , 911 F.2d 242, 246 (9th Cir

. 1990) (advertising that merely states in general terms that one product is superior is not action able). However, false descriptions of specific or absolute characteristics of a product and specific, measurable claims of produc t superiority based on product testing are not puffery and are actionable. See So uthland , 108 F.3d at 1145; Castrol , 987 F.2d at 945.
1. Literally false claims

If a plaintiff proves that a challenged claim is literally false, a court may gran t relief w ithout considering whether the buying public was actually misled; actua l consumer confusion need not be prov ed. See Rhone-Poulenc , 93 F.3d at 516; Johnson & Jo hnson-Merck , 19 F.3d at 129; McNeil-P.C.C., Inc. v. Bristol-Myers Squibb Co. , 938 F.2d 1544, 1549 (2d Cir. 1991) (where advertis ement is shown to be literally false, court may enjoin it without reference to its impact on con sumers). In assessing whether an advertisement is literally false, a court must ana lyze the message conveyed within its full context. See Rhone-Poulenc , 93 F.3d at 516; Southland , 108 F.3d at 1139. In some circumstances, even a visual image, or a visual image combined with an audi o component, may be literally false:

We f ind, therefore, that the squeezing-pouring sequence in the Jenne r commercial is false on its face. The visual component of the ad makes an explicit representation that Premium Pack is produced by squeezing-8-

oran ges and pouring the freshly-squeezed juice directly into the carton

. This is not a true representation of how the product is prepared. Premium Pack juice is heated and sometimes frozen prior to packaging.
Coca-Cola Co. v. Tropicana Products, Inc. , 690 F.2d 312, 318 (2d Cir. 1982); see also Rhone-P oulenc , 93 F.3d at 516 (drug manufacturer’s advertisements featuring images such as two similar gasoline p umps or airline tickets with dramatically different prices, accompaniedby slogan, “Which one would you choose?” was literally false message that competing dru gs could be indiscriminately substituted). The greater the degree to whic h a message relies upon the viewer or consumer to integrate its components an d draw the apparent conclusion, however, the less likely it is that a finding of literal falsity will be supported. Commercial claims that are implicit, attenuated, or merely suggestive usually cannot fairly be characterized as literally false.

The district court determined that the Maxattrax commercial con veyed an explicit message tha t the product killed roaches in 24 hours and found that this message wa s lite rally true. The court concluded that scientific testing performed both by Unite d Industries and Clorox sufficiently demonstrated that Maxattrax, which contains the fastacting nerve toxin known as chlorpyrifos or Dursban, will actually kill a roach within 24 hours of its coming into contact with the product. In response, Clorox argues that the dis trict court erroneously “ignored the explicit visual statements in United’ s advert ising that, as a matter of law, combine with its express audio statements t o determin e its literal meaning.” Brief for Appellant at 16. Clorox contends that th e Maxatt rax commercial conveyed three additional explicit messages that are literall y false: ( 1) that Maxattrax controls roach infestations in consumers’ homes within 2 4 hou rs; (2) that Combat and other roach baits are entirely ineffective in consumers ’ homes within 24 hours; and (3) that Maxattrax provides superior performance i n consumers’ homes in comparison to Combat and other roach baits.-9-

Our review of the record satisfies us that the district court’s determination that the commercial was literally true is not clearly erroneous. The court was clearly correct in its assessment that the audio and print components of the advertisement are literally true. The scientific evidence and expert testimony contained in the record satisfactorily established that Ma

xattrax roach bait “kills roaches in 24 hours.” Clorox protests that this st atement is literally true only in circumstances where a particular roach actuall y comes into the contact with the product. This complaint rings hollow. The requirement that roache s must come into contact with the poison for it to be effective is the central premise of the roach ba

it line of products. We will not presume the average consumer to be incapable of comprehending the essential nature of a roach trap.
Similarly, we conclude that the district court did not err in determining that the Maxattrax commercial did not convey explicit visual messages that were literally false. The de piction of a Maxattrax box in a pristine, roach-free kitchen, coupled with th e depiction o f a kitchen in disarray in which animated roaches happily dance about on a generic roach trap, is not sufficient, in our view, to constitute literal falsity in the manner in which it was presented. When the context is considered as a whole, moreover, the
au dio component of the advertisement, emphasizing only the 24-hour time frame an d quick roach kill with no mention of complete infestation control, fosters ambiguity regarding the intended message and renders the commercial much more susceptible to differing, plausible interpretations. Thus, in our view, the district court’s finding that the commercial did not explicitly convey a literally false message that Maxattrax will completely control a home roach infestation within 24 hours is not clearly erroneous.

Clorox also contends that the commercial conveys an explicit message o f comparative superiori ty that is literally false. We have recently distinguished between two type s of comparative advertising claims brought under the Lanham Act: (1) “m y product is better than yours” and (2) “ t ests prove that my product is better than yours.” Rhone-Poulenc , 93 F.3d at 514 (emphasis in original). When challenging a claim ofC lorox’s Combat product, for example, contains an insecticide calle d 5 hyd ramethylnon, a slow-acting metabolic poison that gradually inhibits the ability o f the cockroach to move, yet has the advantage of being more readily trans mitted to other roaches back in the “nest” who have not come into direct contact with the roach bait station. See S.C. Johnson & Son, Inc. v. Clorox Co. , 930 F. Supp. 753, 757-5 8 (E.D.N .Y. 1996) (discussing relative merits of hydramethylnon versu s chlorpyrifos/Dursban). -10- superiority that does not make express reference to testing, a plaintiff must prove that the defendant’s claim of superiority is actually false, not simply unproven o r unsub stantiated. See id. Under a “tests prove” claim, in which a defendant ha s buttressed a claim of superiority by attributing it to the results of scientific testing, a plaintiff must prove only “that the tests [relied upon] were not sufficiently reliable t o pe rmit one to conclude with reasonable certainty that they established the proposition for which they were cited.” Id. at 514-15 (quoting Castrol, Inc. v. Quaker State Corp. , 977 F.2d 57, 62-63 (2d Cir. 1992)). However, “[t]o ensure vigorous competition and to pro tect legitimate commercial speech, courts applying this standard should giv e advertisers a fair amount of leeway, at least in the absence of a clear intent to deceive or substantial consumer confusion.” Rhone-Poulenc , 93 F.3d at 515.
The Maxattrax commercial indicates in small print at the bottom of the scre en that its implied answer to the posed question, “ Can you guess which bait kills roaches in 24 hours?” is, “Based on lab tests.” In order for this claim to be considered literally false, then, Cloro x must establish that the tests to which the commercial referred were no t suff iciently reliable to support its claims with reasonable certainty. See id. at 514-15. The district court determined that the scientific research provided by United Industries
was r eliable and supported the commercial’s claims. We agree with this conclusion

. Laboratory testing indicate s that the toxin contained in Maxattrax kills within 24 hours those roaches that come into contact with it. Some other roach bait products will not kill a roach within that interval and, in fact, are not even intended to do so. 5Clorox places reliance on S.C. Johnson , 930 F. S upp. at 753, in which a district 6 court issued a preliminary injunction against a Clorox commercial that claimed “testing proves” that its product killed 98 percent of roaches, while its competitors’ products killed only 60 percent. In that case, however, the court found that these numeric , measurable claims, expressly attributed to scientific testing, were unsubstantiated and therefore literally false. See id. at 782-83. -11- Any additional messages in the Maxattrax commercial perceived by Clorox , visual or o therwise, are not sufficiently explicit or unambiguous so as to constitut e
s p ecific false claims of a literal nature. Thus, we cannot say that the court committed clear error in its determinations regardin g the scope of the commercial’s explicit claims of superiority (that it kills roaches within 24 of hours a nd that a generic competitor does not), or in finding that claim to be literally true. See L & F Products, a Div. of Sterling Winthrop, I nc. v. Proctor & Gamble Co. , 45 F.3d 709, 712 (2d Cir. 1995) (distric t court’s determination with respect to facial falsity was not clearly erroneous). 6

2. Implicitly false or misleading claims

Statem ents that are literally true or ambiguous but which nevertheless have a tendency to mislead or deceive the consumer are actionable under the Lanham Act. See Southland , 108 F.3d at 1140; Sandoz Pharm. Corp. v. Richardson-Vicks, Inc. , 902 F.2d 222, 228-29 (3d Cir. 1990); American Home Products Corp. v. Johnson & John son , 577 F.2d 16 0, 165 (2d Cir. 1978). Where a commercial claim is not literally false but i s misleading in context, proof that the adverti sing actually conveyed the implied message and ther eby deceived a significant potion of the recipients becomes critical. Se e William H. Morris Co. v. Group W, Inc. , 66 F.3d 255, 258 (9th Cir. 19 95) (per curiam); Johnson & Johnson * Merck Consumer Pharm. Co. v. Smithkline Beecham Corp. , 960 F.2d 294, 297-98 (2d Cir. 1992).

If a plaintiff does not prove the claim to be literally false, he must prove that it is deceptive or misleading, which depends on the message that is-12-

conveyed to consumers. Public reactio n is the measure of a commercial’s impact. As the di strict court noted, the success of the claim usually turns on the persuasiveness of a consumer survey.

Johnson & Johnson-Merck , 19 F.3d at 129-30 (internal citations omitted).

In affir ming a jury verdict awarding damages under a Lanham Act claim, w e recently held that a manufacturer was not required to provide consumer surveys o r reaction tests in order to prove entitlement to damages in a false compara tive advertising action ag ainst its competitor where the jury found that the competitor had violated the Lanham Act willfully and in bad faith. See Porous Me dia Corp. v. Pall Corp. , 110 F.3d 1329, 1337 ( 8th Cir. 1997). Where, as here, there has been no finding of a willfu l violation or an intent to deceive, evidence of consumer impact is essential. See William H. Mo rris , 66 F.3d at 258-59; American Tel. and Tel. Co. v. Winback and Conserv e Program, Inc. , 42 F.3d 1421, 1443 (3d Cir. 1994); Johnson & Johnson-Merck , 19 F.3d at 129-30 ; Abbott Lab. , 971 F.2d at 14; Smithkline Beecham , 960 F.2d at 297-98 ; Coca-Cola , 690 F.2d at 317. T herefore, unless a commercial claim is literally false, or a trier of fact has d etermined that a competitor acted willfully with intent to deceive or in bad faith, a party seeking relief under this section of the Lanham Act bears th e ultim ate burden of proving actual deception by using reliable consumer or marke t
res earch. See Smithkline Beecham , 960 F.2d at 297 (“It is not for the judge t o determine, based solely upon his or her intuitive reaction, whether the advertisement is decep tive.”); AT&T , 42 F.3d at 1443 (quoting Sandoz , 902 F.2d at 228-29) (“[I] t cannot ob tain relief by arguing how consumers could react; it must show ho w
consumers actually do react.”).

At t he preliminary injunction stage, however, full-blown consumer surveys o r market research are not an absolute prerequisite, and expert tes timony or other evidence may at times be sufficient to obtain preliminary injunctive relief in cases involvin g implicitly false or misleading claims. See Abbott , 971 F.2d at 15; 3-13-

McCarth y § 27:55 at 27-81 (“However, on a motion for a preliminary injunction, a survey is not always necessary and it is sufficient if plaintif f introduces expert testimony
or any other evidence showing that a significant number of consumers received th e claimed message from the advertisement.”).

Clorox contends that when one assesses the comparative visuals and implici t messages in the commercial, a consumer might be misled to construe them as a claim that Maxattrax will completely control an infestation by killing all of the roaches i n one’s home with in 24 hours, while its competitors will fail to do the same. In fact , Maxattrax will kill only those roaches which come into contact with the product; actual control of a roach problem may take several weeks. Whether one accepts the district court’s more literal interpretation of the commercial’s message or Clorox’s propose d construction, however, is highly dependent upon context and inference, and Clorox’s vi ew is unsupported at this point by expert testimony, surveys, or consumer reactio n evidence of any kind. It is, in other words, a classic question of fact, the resolution of which we will not

disturb absent a showing of clear error by the district court. Clorox has not made such a showing.

In sum, then, the district court did not err in concluding that Clorox had no t shown a likelihood of success on the merits of the claim.

B.
The remaining Datap hase factors do not tip the balance of equities decidedly in favor of Clorox. We have stated that the failure to demonstrate the threat of irreparable harm is, by itself, a sufficient ground upon which to deny a preliminary injunction. See Ada m-Mellang v. Apartment Search, Inc. , 96 F.3d 297, 299 (8th Cir. 1996). Whe n injunctive relief is sought under the Lanham Act, the finding of a tendency to deceive satisfies the requisite showing of irreparable harm. See Black Hills Jewelry , 633 F.2d at 753 (“To obtain an injun ction under section 43(a) appellees need only show that the-14-

falsities complained of had a tendency to deceive.”); McNe ilab, Inc. v. American Home Pro ducts Corp. , 848 F.2d 34, 38 (2d Cir. 1988) (where challenged advertisemen t directly , but falsely, proclaims superiority of defendant’s product over plaintiff’s , irreparable harm may be presumed). Absent such a showing, however, i rreparable harm cannot be presumed where, as here, plaintiff has not established an y prospect of success upon the merits. See Sanborn , 997 F.2d at 4 89; Johnson & Johnson v. Carter-Wallace, Inc. , 631 F.2d 186, 192 (2d Cir. 1 980) (“While proof of actual diversion of sales is not required for a § 43(a) in

junction to issue, proof that the advertising complained of is in fact false is essent

ial.”). Clorox has not otherwise sufficiently demonstrated the threat of irreparable injury so as to tip this factor in its favor.
The district court did not make an explicit finding concerning the balance of harm to Clorox stemming from the commercial and the injury to United Industries that would
resu lt from an injunction. In light of the district court’s conclusion that Clorox ha d failed to demonstrate a probability of ultimate success, the possibility that it will suffer any harm f

rom the continuing airing of the commercial is highly speculative an d therefore does not s erve to tip the balance of equities in Clorox’s favor. See generally Sanborn , 997 F.2d at 489-90.

Finally, “[a]lthough the public interest favors enjoining false statements,” id. at 490, absent a more substantial showing that Clorox has a viable claim, this facto r likewise does not tilt the

equities toward granting preliminary injunctive relief. See id. Therefore, because we believ e that it committed no clear error in its factual findings or legal conclusions, we c onclude that the district court did not abuse its broad discretion in denying Clorox’s motion for preliminary injunction.

III.

Addi tionally, Clorox challenges various statements made by United Industrie s regarding the alleged effectiveness and superiority of Maxattrax in its promotional-15-

materials distributed

to retailers, some of which specifically referred to Combat. Such materials may properly be the basis of a claim under section 43(a) of the Lanham Act. See, e.g. , Seven-Up Co. v. Coca-Cola Co. , 86 F.3d 1379, 1382-83 ( 5th Cir. 1996). The distric t court held that Clorox was not entitled to injunctive relief regarding thes e materials because it had never alleged tha t such materials were violative of the Lanham Act. SeeFindings of Fact , Conclusions of Law and Order at 7-8. Clorox sought posthe aring leave to amend, nunc pro tunc , its counterclaim and motion for preliminary injunction to include claims bas ed upon allegedly false statements contained within the promotional literature, which the district court apparently denied.
Although leave to amend is to be freely granted, a district court’s denial of such leave is rev iewed for abuse of discretion. See Springdale Educ. Ass’n v. Springdal e Sch. Dist. , 133 F.3d 649, 653 (8th Ci r. 1998); In re NationsMart Corp. Sec. Litig. , 130 F.3d 309, 322 (8th Cir. 1997). We find no abuse of discretion in the district court’ s denial of l eave to amend. Whether these materials should be considered during a trial on the merits for permanent injunctive relief is a matter to be addressed by the district court.
The order denying preliminary injunctive relief is affirmed.
A true copy.

Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.