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April 23, 2014

False Advertising Complaint Charges that Competitor Used Doctored Photograph

In a complaint filed in the Atlanta Division of the Northern District of Georgia on January 4, 2013, Wika Instrument Corporation (“WIKA”) seeks lost profits, treble damages, and to enjoin allegedly false statements about the flammability and safety of its market-leading XSEL® pressure gauges by a competitor, Ashcroft, Inc. (“Ashcroft”).   

WIKA assets that Ashcroft is seeking to seize market share and damage WIKA’s reputation by touting unreliable and manipulated flammability tests and doctored photographs, which are therefore literally false.  

The complaint identifies WIKA as a global manufacturer and supplier of pressure and temperature measurement instruments for highly combustible materials throughout the United States and globally, primarily to the refinery industry.  WIKA’s market share in the refinery industry, according to the complaint, has increased over the past five years due to its high-quality products and superior ratings for safety and flammability.  WIKA describes a gauge as being comprised of a protective case with a lens protecting the dial and pointer, a Bourdon tube pressure sensing element, a “movement to convert motion” from the sensing element to the pointer, and a connector to attach the gauge to the monitored device or system.  A WIKA XSEL® Process Gauge is pictured below:

 

A WIKA YouTube production describes the features of the gauge at: http://www.youtube.com/watch?v=uWYwZhi4g88

Flammability and fire safety characteristics such as temperature resistance, thermal stability, flame resistance, burn time, and ability to rapidly self-extinguish, are significant customer considerations because of the serious risk of fires in the refinery industry.  

The complaint assets that Ashcroft has been losing business to WIKA for years due to WIKA’s superior quality, safety, flammability characteristics, and price.  The competing Ashcroft Type 1279 Duragauge pressure gauge is shown below:

According to WIKA, Ashcroft advertisements falsely state “Thermoplastics are also more likely to burn than thermosets. … When thermoplastics burn, the material will melt, creating a pool of burning liquid, or even worse, spattering burning molten plastic onto nearby surfaces” and further state that testing has shown WIKA gauges “burn intensely when contacted with the flame,” while “the Ashcroft 1279 did not burn and case integrity was not compromised.”  WIKA referred to a 30 minute 550ºF test reported in an Ashcroft brochure as literally false:  In Paragraph 30 of the complaint, WIKA included the following “after” photo as depicted in the brochures:

The WIKA complaint alleges this photo is “doctored.”  Much of the WIKA allegations are based on information and belief that at least one of the following actions was taken to skew the test results:  (1) the pictures were doctored; (2) flammable portions of the Ashcroft gauge were removed before testing; (3) the Ashcroft gauge was cleaned after the test but before the photo; or (4) the pictured Ashcroft gauge was not the gauge used in the test.

WIKA asserts a false advertising claim under Lanham Act § 43(a)(1)(B) [15 U.S.C. §1125(a)], seeking injunctions pursuant to §1116 , attorney fees, profits, costs, prejudgment interest, corrective advertising costs, monetary damages enhanced damages, and attorneys’ fees under §1117(a), and destruction of advertisements under §1118.  WIKA further asserts Georgia’s Uniform Deceptive Trade Practice Act (O.C.G.A. § 10-1-372), Connecticut’s Unfair Trade Practices Act (C.G.S.A. § 42-110a et seq.), and tortious interference with current and prospective business relationships.

The elements of a prima facie case of false advertising under the Lanham Act are recited in our November 13, 2012 blog post, which covers a complaint filed by WIKA against a different competitor.

The case is Wika Instrument I, LP, f/k/a Wika Instrument Corp. v. Ashcroft, Ins., No. 1:13-cv-43-WSD, filed 01/04/13 in the U.S. District Court for the Northern District of Georgia, Atlanta Division, and has been assigned to U.S. District Judge Charles A. Pannell, Jr.

Copyright © 2014 Womble Carlyle Sandridge & Rice, PLLC. All Rights Reserved.

About the Author

Kirk Watkins, Womble Carlyle Law Firm, Business Litigation Attorney
Attorney

Kirk manages and tries complex business litigation, patent and international arbitration disputes. He believes thorough preparation and strategic theme development result in successful trials or settlements.    

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