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July 25, 2014

False Advertising Asserted by Wika Instrument Corporation against Winter’s Thermogauges

In a complaint filed in the Atlanta Division of the Northern District of Georgia on October 29, 2012, Wika Instrument Corporation (“WIKA”) seeks to enjoin allegedly false statements about its commercial and industrial pressure gauges relating to product warranties, materials, accuracy, and design by a competitor, Winter’s Thermogauges (“Winters”).   According to WIKA, the false statements are disseminated on Winters’ web page, by mail, and in-person to actual and potential customers and distributors.  The complaint identifies multiple examples.  WIKA seeks profits, additional money damages, enhanced damages, attorney’s fees, and costs, in 5 counts pursuant to the Lanham Act, Georgia’s Uniform Deceptive Trade Practice Act, New York’s General Business Law Statutes §§ 349 and 350, common law, and O.C.G.A. § 13-6-11.  

The complaint defines the Pressure Gauge Market as including chemical and petrochemical companies, power stations, mining operations, on and offshore drilling operations, environmental technology companies, and businesses engaged in plant construction and mechanical engineering.  

WIKA’s complaint specifies 15 different instances of allegedly false statements regarding its products and references exhibits alleged to have been downloaded from the Winters website.  Pictured below is the WIKA Model 232.34 NACE pressure gauge from the WIKA website, showing a WIKA representation that it has a five-year warranty.

Paragraph 13 of WIKA’s complaint alleges falsity of Winters’ representation that WIKA only offers a one-year warranty.  In support of this allegation, WIKA attaches an Exhibit A to the complaint allegedly downloaded from the Winters website that lists the WIKA model 232.34 as merely carrying a one-year warranty.  Set forth below is a recomposition from Exhibit A, showing alleged Winters representations regarding the WIKA 232.34 product and a Winters pressure gauge product.

In a decision covered in a prior post, the Eleventh Circuit recently listed the elements of a claim for false advertising under the Lanham Act:

To establish a prima facie case of false advertising pursuant to 15 U.S.C. § 1125(a), a plaintiff must establish that the defendant:

  1.  Uses a false or misleading
    1. Description of fact or
    2. Representation of fact;
  2. In interstate commerce;
  3. And in connection with goods or services;
  4. In commercial advertising or promotion;
  5. When the description or representation misrepresents the nature, qualities geographic origin of
    1. The defendant's [g]oods, services or commercial activities or
    2. The goods, services or commercial activities of another person;
  6. And plaintiff has been or is likely to be damaged by these acts.[1]

The case is Wika Instrument Corp. v. Winter’s Thermogauges Inc., d/b/a Winters Instruments, No. 1:12-cv-3785-WSD, filed 10/29/12 in the U.S. District Court for the Northern District of Georgia, Atlanta Division, and has been assigned to U.S. District Judge William S. Duffey, Jr.


[1] Suntree Techs., Inc. v. Ecosense Int’l, Inc., 693 F.3d 1338, 1348-49 (11th Cir. 2012) (citing 5 J. Thomas McCarthy, McCarthy on Trademarks and Unfair Competition § 27:24 (4th ed. 2007) (omitting footnotes)).

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