Examination Board v. International Association

• Court: Court of Appeals for the Tenth Circuit
• Decided: June 14, 2022
• Docket: 21-1087
• Status: Published

Opinion

Appellate Case: 21-1087 Document: 010110696562 Date Filed: 06/14/2022 Page: 1 FILED United States Court of Appeals PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS June 14, 2022

Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________

AMERICAN SOCIETY OF HOME INSPECTORS, INC.,

Plaintiff Counterclaim Defendant- Appellee,

and

EXAMINATION BOARD OF PROFESSIONAL HOME INSPECTORS,

Plaintiff,

v. No. 21-1087

INTERNATIONAL ASSOCIATION OF CERTIFIED HOME INSPECTORS,

Defendant Counterclaimant- Appellant,

NICKIFOR GROMICKO, a/k/a Nick Gromicko,

Defendant. _________________________________

Appeal from the United States District Court for the District of Colorado (D.C. No. 1:18-CV-01559-RBJ) _________________________________ Appellate Case: 21-1087 Document: 010110696562 Date Filed: 06/14/2022 Page: 2

Matthew Furton, Locke Lord, Chicago, Illinois (Hannah Oswald, Locke Lord, Chicago, Illinois, and Frank Lopez, Glade Voogt Lopez & Smith PC, Denver, Colorado, with him on the briefs), for Defendant and Defendant Counterclaimant-Appellant.

Robert S. Grabemann, Daspin & Aument LLP, Chicago, Illinois (Geoffrey N. Blue, Gessler Blue LLC, Greenwood Village, Colorado, with him on the brief), for Plaintiff and Plaintiff Counterclaim Defendant-Appellee. _________________________________

Before TYMKOVICH, Chief Judge, CARSON, and ROSSMAN, Circuit Judges. _________________________________

TYMKOVICH, Chief Judge. _________________________________

This appeal concerns a Lanham Act dispute between two national

associations of home inspectors: the International Association of Certified Home

Inspectors (InterNACHI) and the American Society of Home Inspectors (ASHI).

The competing trade associations offer memberships to home inspectors, who

typically inspect homes prior to home sales. Benefits of membership in

InterNACHI and ASHI include online advertising to home buyers, educational

resources, online training, and free services such as logo design.

From 2015 to 2020, ASHI featured the following slogan on its website

below its organizational logo: “American Society of Home Inspectors. Educated.

Tested. Verified. Certified.”

Contending this tagline misleads consumers, InterNACHI sued ASHI under the

Lanham Act, 15 U.S.C. § 1125(a), which provides a private right of action against 2 Appellate Case: 21-1087 Document: 010110696562 Date Filed: 06/14/2022 Page: 3

any person who uses false or misleading statements in commercial advertising.

InterNACHI claims ASHI’s tagline constitutes false advertising because it

inaccurately portrays ASHI’s entire membership as being educated, tested,

verified, and certified, even though its membership includes so-called “novice”

inspectors who have yet to complete training or become certified. InterNACHI

argues this misleading advertising and ASHI’s willingness to promote novice

inspectors to the public caused InterNACHI to lose potential members and dues

revenues.

The district court granted summary judgment in favor of ASHI. The court

concluded no reasonable jury could find that InterNACHI was injured by ASHI’s

allegedly false commercial advertising.

Exercising jurisdiction under 28 U.S.C. § 1291, we affirm. To prevail on

its false advertising claim under the Lanham Act, InterNACHI must show that it

suffered or is likely to suffer harm to a reputational or commercial interest

resulting from ASHI’s false advertising. Because InterNACHI did not present

any evidence from which a reasonable jury could find that InterNACHI was

injured by ASHI’s slogan, the district court did not err in granting summary

judgment for ASHI.

I. Background

InterNACHI and ASHI are competing national organizations that offer

memberships to independent home inspectors. Currently, they are the only two

3 Appellate Case: 21-1087 Document: 010110696562 Date Filed: 06/14/2022 Page: 4

national home inspector associations, though many state-level home inspector

associations exist.

InterNACHI and ASHI offer similar benefits to members. Those benefits

include advertising by geographical location on their websites, providing free

online education and resources, and offering free logo designs. Members must

pay monthly or yearly dues to maintain an active membership. ASHI has

approximately 8,000 active members, and InterNACHI maintains a membership

of over 24,000 home inspectors.

ASHI has three membership classes: (1) associate, (2) inspector, and

(3) certified inspector. ASHI requires no formal professional qualifications to

join as an associate, but associates must complete the organization’s standards of

practice and ethics modules within one year of joining the organization. To attain

inspector or certified inspector status, a member must pass a national or state

home inspector exam, conduct a specific number of home inspections, and submit

home inspection reports for verification, in addition to completing the ASHI

standards of practice and ethics modules. All ASHI members who have held their

membership for one year or more are also required to complete continuing

education requirements to maintain good standing.

One of the benefits of ASHI membership is listing on ASHI’s “Find-an-

Inspector” tool on its website. The tool allows prospective home buyers to search

for an inspector by location and to view the inspector’s qualifications,

membership level, and contact information. Users can view the criteria for

4 Appellate Case: 21-1087 Document: 010110696562 Date Filed: 06/14/2022 Page: 5

ASHI’s membership levels by clicking on the membership status next to the name

of an inspector in the search results. Even though some ASHI associate home

inspectors are novices and have never received training or conducted a home

inspection, ASHI advertises all its members as home inspectors through its Find-

an-Inspector search engine.

InterNACHI is ASHI’s sole national competitor. 1 InterNACHI offers

similar membership benefits as ASHI, including advertising home inspectors on

its public website, free online education, and free logo design. But unlike ASHI,

InterNACHI does not promote novice home inspectors to the public on its

website.

In 2019, ASHI sued InterNACHI and its founder, Nick Gromicko, for

defamation. It alleged Gromicko made disparaging comments about ASHI in an

online forum. 2 In response, InterNACHI filed a counterclaim against ASHI under

Section 43(a) of the Lanham Act, alleging that ASHI’s tagline—“Educated.

Tested. Verified. Certified.”—constitutes false advertising and deceives potential

home buyers because not every ASHI inspector is educated, tested, verified, or

certified. InterNACHI claims the misleading tagline harmed InterNACHI

because novice inspectors were incentivized to join ASHI due to the

1 A third national home inspector association, the National Association of Home Inspectors, closed its doors in 2016. 2 The district court consolidated the ASHI case with a similar defamation suit brought by the Examination Board of Professional Home Inspectors (Exam Board) against InterNACHI and Gromicko. 5 Appellate Case: 21-1087 Document: 010110696562 Date Filed: 06/14/2022 Page: 6

organization’s willingness to advertise uncertified associate members as home

inspectors through its Find-an-Inspector search engine.

The parties filed cross motions for summary judgment. The district court

granted summary judgment for ASHI on InterNACHI’s Lanham Act

counterclaim. The court concluded that InterNACHI failed to show it was injured

by ASHI’s tagline, as required for a Lanham Act false advertising claim. 3

II. Analysis

InterNACHI argues the district court erred by granting summary judgment

for ASHI on InterNACHI’s Lanham Act claim. Specifically, InterNACHI claims

the district court incorrectly (1) concluded no reasonable jury could find that

InterNACHI was harmed by ASHI’s tagline; (2) refused to apply a presumption

of harm for InterNACHI as a direct competitor; and (3) dismissed InterNACHI’s

injunctive relief and disgorgement claims.

Reviewing de novo, we affirm. See Sally Beauty Co., Inc. v. Beautyco,

Inc., 304 F.3d 964, 971 (10th Cir. 2002). We agree with the district court that

InterNACHI failed to present evidence that shows a commercial injury

proximately caused by ASHI’s tagline.

Under the Lanham Act, any person who makes false or misleading

descriptions of fact in commercial advertising “shall be liable in a civil action by

3 The district court granted summary judgment for InterNACHI and Gromicko on ASHI’s defamation claim and related claims, as well as most of Exam Board’s claims. Exam Board later voluntarily dismissed its remaining claims against InterNACHI. 6 Appellate Case: 21-1087 Document: 010110696562 Date Filed: 06/14/2022 Page: 7

any person who believes that he or she is or is likely to be damaged by such act.”

15 U.S.C. § 1125(a)(1)(B). “To invoke the Lanham Act’s cause of action for

false advertising, a plaintiff must plead (and ultimately prove) an injury to a

commercial interest in sales or business reputation proximately caused by the

defendant’s misrepresentations.” Lexmark Int’l, Inc. v. Static Control

Components, Inc., 572 U.S. 118, 140 (2014). A plaintiff bringing a Lanham Act

claim “cannot obtain relief without evidence of injury.” Id.

The district court concluded InterNACHI failed to prove injury or damages.

InterNACHI challenges this conclusion and points to the following evidence to

demonstrate injury: (1) a survey showing that consumers may be deceived by

ASHI’s tagline; (2) a substantial increase in ASHI’s associate membership after

ASHI posted the slogan on its website; and (3) a declaration by InterNACHI’s

founder stating that ASHI’s slogan is harmful to InterNACHI. After a careful

review of the record, we conclude this evidence fails to demonstrate that

InterNACHI suffered “an injury to a commercial interest in reputation or sales.”

See id. at 131–32.

To support its Lanham Act claim, InterNACHI hired an expert to design

and conduct a survey of consumers regarding ASHI’s slogan. The expert showed

participants ASHI’s website and asked them whether ASHI’s tagline gives the

impression that all home inspectors listed on ASHI’s website are educated, tested,

verified, and certified. Based on the survey results, the expert determined that

72.4% of the participants thought all home inspectors advertised on ASHI’s

7 Appellate Case: 21-1087 Document: 010110696562 Date Filed: 06/14/2022 Page: 8

website possessed the qualities described in the tagline. But after “accounting for

guessing and other forms of survey noise,” the expert concluded the “net level of

deception is 15.2%.” App., Vol. I at 161.

While the survey results might be helpful in determining whether

consumers have been deceived by ASHI’s tagline, the results do not shed any

light on whether home inspectors are more likely to join ASHI instead of

InterNACHI due to ASHI’s tagline. To show harm, InterNACHI must put forth

evidence that ASHI’s tagline injured InterNACHI in some way. For example,

InterNACHI could demonstrate that its revenue, membership, or website traffic

declined after ASHI began using the tagline. But the record is devoid of any such

evidence. InterNACHI has not identified a single home inspector who chose to

join ASHI rather than InterNACHI due to ASHI’s tagline or willingness to hold

uncertified inspectors out to the public as fully qualified. Thus, the survey of

consumers does not demonstrate an injury to InterNACHI.

Next, InterNACHI claims ASHI’s substantial increase in associate

membership following implementation of the tagline shows an injury to

InterNACHI. In the five years after ASHI began using the tagline, ASHI’s

associate membership roughly doubled in size. Notwithstanding the fact that

home inspectors are free to join both ASHI and InterNACHI, InterNACHI

theorizes—again without evidence—that ASHI’s increase in membership harms

InterNACHI because home inspectors would otherwise have joined InterNACHI

instead of ASHI were it not for ASHI’s tagline.

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We decline to infer harm to InterNACHI from ASHI’s increase in associate

membership between 2015 and 2020.4 At best, the membership spike shows that

ASHI benefitted from the tagline—though ASHI claims the increase in

membership is attributable to other causes. For example, around the time ASHI

began using the tagline, ASHI also started offering reduced and free memberships

to students. Additionally, ASHI issued memberships to former members of the

National Association of Home Inspectors, the national home inspector association

that shut down in 2016.

Regardless of the cause of ASHI’s membership increase, InterNACHI

supplies no evidence that its own membership levels were affected by ASHI’s

tagline. In fact, some of InterNACHI’s evidence cuts in the opposite direction.

For instance, InterNACHI presented a 2016 email from ASHI’s former president

explaining that his son—an aspiring but uncertified home inspector—joined

InterNACHI due to its superior online education resources. His son even said

that “he can see why so many join [InterNACHI] when they are looking at getting

in the [home inspector] profession.” App., Vol. I at 219. This evidence further

weakens InterNACHI’s claim that ASHI’s false tagline lured novice home

inspectors away from InterNACHI.

Lastly, InterNACHI claims that a declaration by its founder, Nick

Gromicko, in which he alleges harm to InterNACHI caused by ASHI’s tagline, is

4 ASHI removed the tagline from its website in April 2020. 9 Appellate Case: 21-1087 Document: 010110696562 Date Filed: 06/14/2022 Page: 10

sufficient to survive summary judgment. In his declaration, Gromicko stated that

ASHI’s “use of th[e] slogan in connection with the Find an Inspector tool is

harmful to InterNACHI.” Id. at 152. Gromicko does not explain why the slogan

is harmful to InterNACHI, nor does he offer any factual support for his claim that

the slogan injured InterNACHI.

InterNACHI cannot rely on an unsupported and conclusory assertion to

establish injury. At the summary judgment stage, InterNACHI must do more than

merely speculate that it has been harmed—it must provide evidence from which a

reasonable jury could conclude that an injury to InterNACHI has occurred. See

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986) (“[T]here is no issue

for trial unless there is sufficient evidence favoring the nonmoving party for a

jury to return a verdict for that party.”); Conaway v. Smith, 853 F.2d 789, 794

(10th Cir. 1988) (“In a response to a motion for summary judgment, a party

cannot rest on ignorance of facts, on speculation, or on suspicion and may not

escape summary judgment in the mere hope that something will turn up at trial.”).

In short, InterNACHI has failed to identify a genuine issue of material fact

that ASHI’s tagline injured InterNACHI. Even though ASHI’s tagline was in

place on ASHI’s website for nearly five years, InterNACHI has provided no

evidence that it was harmed during that time. Summary judgment is therefore

appropriate.

To be clear, we are not faulting InterNACHI for failing to provide a

quantum of damages. This level of specificity is not required at the summary

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judgment stage. The problem is that instead of putting forth any evidence

demonstrating that it was injured by ASHI’s tagline, InterNACHI relies solely on

speculation and conjecture to establish harm. Based on this lack of evidence, no

reasonable jury could conclude that InterNACHI was injured by ASHI’s tagline. 5

InterNACHI argues that even if it has not demonstrated an injury to a

commercial interest, we should presume harm because InterNACHI is ASHI’s

sole competitor in the national home inspector market. The district court rejected

this argument, explaining that a direct competitor must still produce “some

evidence of causation and injury” and cannot “rely entirely on a presumption

based on competition.” App., Vol. II at 322 (quoting Gen. Steel Domestic Sales,

LLC v. Chumley, 129 F. Supp. 3d 1158, 1178–79 (D. Colo. 2015)). 6

5 The lack of evidence of injury also dooms InterNACHI’s injunctive relief claim. To enjoin ASHI’s use of the tagline, InterNACHI must show a likelihood of harm, which InterNACHI has failed to do. See Lexmark, 572 U.S. at 135 (a plaintiff may be entitled to injunctive relief under the Lanham Act “assuming it can prove a likelihood of future injury”). 6 The district court also declined to presume harm because InterNACHI “admit[s] that the associates who joined ASHI might not have been welcome at InterNACHI even if they had wanted to join.” App., Vol. II at 323. Based on this admission, the district court concluded that “ASHI was the only membership service in this two-player market that would allow novice home inspectors to gain experience and be advertised to homeowners prior to certification.” Id. InterNACHI argues that the district court erred in reaching this conclusion because InterNACHI never stated that it does not welcome novice home inspectors. On the contrary, InterNACHI says it encourages novices to join its association—it simply does not advertise novices to the public on its website. After a review of the record, we agree with InterNACHI that it never stated it does not offer memberships to uncertified home inspectors. 11 Appellate Case: 21-1087 Document: 010110696562 Date Filed: 06/14/2022 Page: 12

True, we have noted in dicta that other circuits have allowed “a factfinder

to presume injury caused by representations which are literally false or

demonstrably deceptive” in Lanham Act cases. See Hutchinson v. Pfeil, 211 F.3d

515, 522 (10th Cir. 2000). But we ultimately declined to apply the presumption

in Hutchinson in part because “the presumption is properly limited to

circumstances in which injury would . . . likely flow from the defendant’s

objectionable statements.” Id. Those circumstances might include “when the

defendant has explicitly compared its product to the plaintiff’s or the plaintiff is

an obvious competitor with respect to the misrepresented product.” Id.

InterNACHI contends it is entitled to a presumption of harm because it

directly competes with ASHI for home inspector memberships. We disagree for

two reasons.

First, the fact that InterNACHI is ASHI’s competitor is insufficient on its

own to apply a presumption of harm. InterNACHI still must show that “injury

would . . . likely flow” from ASHI’s tagline. See id. To hold otherwise would

mean that “a plaintiff might enjoy a windfall from a speculative award of

damages by simply being a competitor in the same market.” Porous Media Corp.

v. Pall Corp., 110 F.3d 1329, 1334 (8th Cir. 1997). While we may presume harm

in certain cases—such as those where a business compares its product to that of

its direct competitor or disparages its direct competitor’s product in an

advertisement—we will not apply the presumption of harm based solely on the

fact that the plaintiff and defendant are in competition with each other. Here,

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ASHI’s tagline does not reference InterNACHI or disparage InterNACHI

memberships. Rather, ASHI’s tagline consists of four words without any context:

“Educated. Tested. Verified. Certified.” As explained above, InterNACHI has

failed to show how these words are likely to cause injury to InterNACHI.

Second, although ASHI and InterNACHI are competitors, home inspectors

are free to join both associations. Inspectors may also join one of the many state-

specific home inspector associations. As the Executive Director of ASHI

explained, “[H]istorically many ASHI members also belong to InterNACHI or

another home inspector association.” App., Vol. II at 284. Because members can

and do belong to both organizations, we cannot presume that any gain in ASHI’s

membership due to false advertising is necessarily InterNACHI’s loss.

In sum, a rational jury could not find that InterNACHI suffered or is likely

to suffer a commercial or reputational injury because of ASHI’s tagline. Thus,

the district court did not err when it granted summary judgment in favor of ASHI.

III. Conclusion

For the foregoing reasons, we AFFIRM the district court’s grant of

summary judgment in favor of ASHI.