I'm posting this as information for members interested in this controversy. I guess that it is not controversy any longer. ;)
Newest Update 6-22-10:
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Mike Buetow, Gary Steven Richardson, Jr.,
Joe Rohrbach, Jeff Brosi, and Dennis Deeb,
individually on behalf of themselves and all
other Minnesota residents and entities
similarly situated,
Plaintiffs,
Civ. No. 07-3970 (RHK/JJK)
INJUNCTION
v.
A.L.S. Enterprises, Inc., Cabela's Inc.,
Cabela's Wholesale, Inc., and
Gander Mountain Co.,
Defendants.
On May 13, 2010, the Court issued an Order granting in part and denying in part Plaintiffs' Motion for Summary Judgment (Doc. No. 335). In that Order, the Court found several of Defendants' advertisements to be literally false, holding permanent injunctive relief to be appropriate under the Minnesota Consumer Fraud Act and the Minnesota Unlawful Trade Practices Act. Pursuant to the Court's Order, Plaintiffs have filed and served a proposed Order Regarding Injunctive Relief and Defendants have submitted objections thereto.
As discussed in more detail in the Court's Order, Defendants have published
numerous advertisements promoting their carbon-embedded clothing. Almost all of these advertisements utilize the slogans "odor-eliminating technology" or "odor-eliminating clothing." Many utilize phrases such as "eliminates all types of odor" and "odor elimination," or assert that the clothing can eliminate "100% of your scent" or "all human odor," thus making the wearer "scent-free." Some advertisements utilize graphics indicating that odor cannot escape carbon-embedded fabric. Additionally, Defendants have published advertisements stating that their carbon-embedded clothing can be
reactivated to "like new" or "pristine" condition.
Plaintiffs' and Defendants' experts agree that carbon-embedded clothing cannot eliminate odor. The experts also agree that carbon-embedded clothing, once saturated with odor, cannot be reactivated to "like new" or "pristine" condition. Accordingly, Defendants' advertising described above and set forth in detail in the Court's Order is literally false as a matter of law.
Based on the foregoing, and all the files, records, and proceedings herein, it is
ORDERED that:
1. Defendants A.L.S. Enterprises, Inc., Cabela's, Inc., Cabela's Wholesale, Inc., and Gander Mountain Co., or anyone that advertises on their behalf at any Defendant's direction and within any Defendant's control,1 are enjoined from publishing in Minnesota any advertisement that reasonably may be viewed by customers, including, but not limited to, print (including product packaging, accessories packaging (such as sprays, socks, or other accessories that include the slogans "odor-eliminating technology" or "odor-eliminating clothing"), catalogs, point-of-1 To the extent that Defendants' advertisements are now distributed to third parties and are therefore outside Defendants' control, the underlying Injunction does not apply.
Sale (including banners and display cases) or sales training materials, logos,
hangtags, graphics, clothing tags, and sewn-in labels), television, video, radio, or internet advertising that contains the following language:
a. Any statement or claim, whether in words or pictures, that carbonembedded clothing is odor-eliminating technology, an odor-eliminating
product, or that it can eliminate odor, or can make the wearer of the product
or the air coming from the wearer "scent free", "odor free", or otherwise
quantify any odor reduction as complete or removed in its entirety;2 or
b. Any statement or claim, whether in words or pictures, that carbonembedded clothing can be reactivated or regenerated to "like new" or
"pristine" condition or otherwise represent that all odor can be removed
from the product.
2. Defendants shall remove depictions from websites (including but not limited to www.scentlok.com, www.scentlokscience.com, www.gandermountain.com, and www.cabelas.com), and physically from retail stores, all advertising, including clothing, hangtags, accessories (sprays, tote bags and washes), logo wear (hats, shirts, etc.), decals, license plates, posters, banners, display cases, and other similar items that contain the words or phrases prohibited in paragraphs 1(a) or 1(b) above.
2 Several of Defendants' advertisements use the slogans "odor-eliminating technology" or "odoreliminating clothing," but further qualify this language with words or phrases indicating that carbon-embedded clothing cannot eliminate odor. These advertisements were not found by the Court to be literally false. The Court notes that qualifying language must be clear and
conspicuous in order to prevent advertisements containing prohibited language from running afoul of this Injunction.
3. Defendants shall fully comply with this Injunction on or before July 30, 2010, and file with the Court a sworn statement, titled "Proof of Compliance," signed by an officer of each Defendant and its attorney, stating that all materials (written, electronic, video, sound) and products containing the false advertising have been removed from commerce. Such Proof of Compliance shall detail the steps taken by the Defendants to assure that their false advertising is no longer in commerce.
Dated: June 17, 2010 s/Richard H. Kyle
RICHARD H. KYLE
United States District Judge
Case 0:07-cv-03970-RHK-JJK Document 346 Filed 06/17/10 Page 4 of 4
are these the same peoplr that once went around selling farmers odorless outhouses?
Wonder if they are giving refunds?
No tellin how much they made on that hoax.
I learned, deer hunt into the wind if you can.
I keep my hunting clothes in a cedar chest my Grandfather made. Cedery fresh smell every time.
My youngest son has been an avid deer hunter for years. I've seen him with the camo head to toe, washed in the special odor eliminating soap, wash himself with odor eliminating soap, keep the clothes in a zip lock back till he gets to the woods, even unscented deodorant. Don't get me wrong, he's taken a lot of deer.
I just took up deer hunting after I retired in 2007. I'd always heard deer have a very keen sense to smell. Like fishfarmer, I position myself to be looking into the wind when I've hunted for deer. Cause I like my coffee and cigarettes. One morning, I was under the cedar tree I like to hunt from taking a big drag. Out of the corner of my eye, about 15 feet away and two my right, walked up a couple of yearling's. They stopped frozen looking at me in my camo. There I sat with a big drag in my lungs, afraid to breath, smoke drifting off the cig. They watched and smelled for about a minute, doing their head adjustment side to side trying to figure out what I was. Then they started walking on past to where they were going. I guess they decided if it was smoking, it wasn't a threat to them. :D :D :D
Sometimes the odor-free way is not the way to go!
For example, my brother has about a 300 acre dairy farm and he milked cows up until about 5-6 years ago.
During hunting season he would get done milking in the morning and head for the house for breakfast, then out the door to hunt.
Never changed his clothing "from the barn to the woods" and always saw deer and got plenty of them.
His theory was "let them smell what they're used to"!
My theory has always been that people were eating deer meat long before scent lock was invented, camoflauge too. ;D
Don
QuoteHis theory was "let them smell what they're used to"!
A good theory!!
Nothing like walking through a couple of cow plops.
I have always wondered how much differerence this makes, as I am an above average hunter who wears his work clothes most of the time. And after a few days in the woods, around horses and mules, campfire smoke, etc. there's no eliminating that smell :D I often hunt with guys who are into all this, and usually they see less game than me. Watch the wind, and know the thermal patterns is what I go by.
I watch the wind and thermal currents, but also use scent lok clothing. ;)
So they were deliberately misleading consumers, made money for quite some time on it, and in the end are not penalized in any way other than they cannot continue the same in the future? They will just replace the deliberate misleads with implied semi-ambiguous one that can be successfully argued in court next time. Typical of our court systems, seldom is justice actually just.