Cheezy Comments OK, But Not Comparision to Iraq Information Minister

Comparing your goods to your competitor’s as the difference between dried cream cheese and real Parmigiano is not libelous but saying your competitor’s integrity is the same as the Iraq information officer can be libelous, an Illinois appellate court said.

The issue arose over an advertisement in the Chicago Sun-Times by Cosmo’s Designer Direct, Inc. that compared its goods and practices to an unnamed competitor identified only as being “east of Eden and south of quality.” Imperial Apparel, Ltd. and its owners sued for libel per se and per quod, commercial disparagement and consumer fraud.

The trial court dismissed the case finding the ad was “non-actionable opinion” but the appellate court reinstated some of the counts. The appellate court found that comparing plaintiff’s goods and Cosmo’s goods “to the difference between dried cream cheese and ‘real Parmigiano’ might well be considered by some as a veiled ethnic slur” but it is not actionable since it is not capable of objective verification. The court said that statements that do not make factual assertions enjoy First Amendment protection and cannot form the basis of a defamation action.

However, the line was crossed when the ad stated: “It is laughable now with all the integrity of the ‘Iraq Information Minister,’ they brazenly attempt pulling polyester over your eyes by conjuring up a low rent 3 for imitation that has the transparency of a hookers come on . . . but no matter how they inflate prices and compromise quality, much to their dismay, Cy and his son Paul the plagiarist still remain light years away from delivering anything close to our ‘3 for 1′ values.” This paragraph, the court said, imputes a want of integrity on the part of plaintiffs in the discharge of their duties and prejudices them in their business.

The court rejected defendants’ arguments that the paragraph could be “innocently construed.” “We believe that the statements contained in the third paragraph are not pure opinion,” the court wrote. “They address both the conduct and character of the individual plaintiffs and appear to be based on facts concerning the quality of Imperial’s goods which have not been stated. Whether Imperial was selling imitation goods of inferior quality is certainly capable of objective verification. Although the statements were made in the context of a competitor’s advertisement, certainly not a setting which would lead a reader to infer that the statements are factual in nature, we nevertheless believe that a reasonable reader could very well interpret Cosmo’s ad asserting actual facts about the plaintiffs and the originality and quality of Imperial’s goods.”

Imperial Apparel, Ltd., Cyril Rosengarten and Paul Rosengarten v. Cosmos’ Designer Direct, Inc. and Chicago Sun-Times, Inc., Illinois Appellate First District No. 1-05-2744, dated June 28, 2006.