failure to speak can be advertising but not presentations to trainers

WIKA Instrument I, LP v. Ashcroft, Inc., 2015 WL 11199059, No.
13-CV-43 (N.D. Ga. Jul. 10, 2016)
WIKA sued Ashcroft, a competing maker of pressure gauges,
for false advertising and related claims, and Ashcroft counterclaimed
similarly.  WIKA sells the XSEL Process
Gauge, available with either a dry case or a liquid-filled case, and Ashcroft’s
competing models are the Ashcroft Type 1279 Duragauge and the Type 1259
Of broader note: Durability claims made in PowerPoint slides
created by Ashcroft for use in a “Train the Trainer” presentation shared with
Ashcroft’s sales force and product specialists at its distributors:  These people weren’t members of the relevant
purchasing public. The only evidence that the advertisement may have been
disseminated to an actual consumer was one exchange.  This wasn’t enough to constitute “commercial
advertising or promotion,” given the size of the pressure gauge market.
Ashcroft’s counterclaims: Ashcroft alleged that WIKA mislead
consumers regarding the composition of its gauges by selling consumers its
gauge made of thermoplastic material despite consumers identifying in their
requests for quotation (“RFQ”) that they sought a phenolic gauge. Ashcroft
claimed that WIKA should have filed an “exception” to any RFQs for a phenolic
gauge to notify customers of the discrepancy.  WIKA argued that this wasn’t commercial
advertising or promotion because it was merely a failure to speak, but the
cases didn’t support a distinction between affirmative and negative conduct. “False
advertising claims often turn on what was not said or disclosed by the
defendant; less than full disclosure may constitute actionable false
WIKA argued that only consumers had standing to challenge its
practice because they decided whether WIKA needed to “except” to a bid
specification.  But that didn’t
distinguish WIKA’s practices from those of advertisers in general; consumers
might be injured too, but the Lanham
Act isn’t for them.
As for durability claims, Ashcroft argued that cited tests
didn’t support WIKA’s claims. For example, Ashcroft argues that the tests only
showed, on average, that the XSEL lasted 4.46 times longer than the 1279 rather
than 5 times longer, and the test included only Ashcroft and no other
competitors. WIKA responded that the difference between 5 and 4.46 was “a
partial truth, at worst,” and that WIKA reasonably assumed that its gauge would
outlast other, cheaper competitors.  The
court left this dispute for the finder of fact.
Ashcroft did offer testimony about harm about specific
consumers who bought XSEL gauges rather than 1279 gauges when WIKA failed to
except to bid specifications for phenolic gauges.  Moreover, a presumption of injury could apply
in this case, given that there was sufficient evidence for a reasonable trier
of fact to conclude that some comparative statements were willfully deceptive: “Specifically,
there is evidence that WIKA did not have access to the tests performed by its
German parent company prior to making the 5 times longer claim based on the
tests. There is also evidence that WIKA did not perform its own testing for the
2.5 times or more representation; WIKA relied only on an anecdote from a
The same evidence failed for tortious interference, though,
because Georgia requires more than circumstantial evidence that the plaintiff
would have received the business—it requires direct evidence. 
WIKA Instrument I, LP v. Ashcroft, Inc., 2013 WL 12061904,
No. 13-CV-43 (N.D. Ga. Jul. 3, 2013)

Showed up in the same Westclip search (I’m getting a lot of
these oldsters recently).  Of possible
greater relevance: the court declined to require WIKA’s Lanham Act claim to
satisfy Rule 9(b).  In addition, WIKA was
not required to plead that it had consumer surveys supporting its allegations
of misleadingness. “[T]he standard on summary judgment is different than the
standard on a motion to dismiss for failure to state a claim pursuant to Rule
12(b)(6). WIKA is not required to prove every element of its claim at this
stage of the proceedings.”

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