903 F. Supp. 2d 1120
D. Or.2012Background
- FLIR Systems, Inc. sued Fluke Corporation, Sierra Media, and related entities in 2010 seeking relief on false advertising under the Lanham Act, state-law trade libel, civil conspiracy, aiding and assisting, and declaratory relief regarding FLIR's asserted IR Fusion trademark.
- Fluke is a Danaher subsidiary that manufactures thermal imaging cameras, competing with FLIR; Sierra is Fluke’s longstanding media/marketing vendor, not a camera manufacturer.
- FLIR’s advertisements have used higher-resolution camera images superimposed on displays of lower-resolution cameras to depict product images since at least 2008.
- In September 2009 Fluke and Sierra released a drop-test video comparing Fluke Ti32 to FLIR cameras, which FLIR alleges is misleading about ruggedness and testing results.
- The court granted and denied various summary-judgment motions: Sierra’s motion was granted in full; Fluke’s injunctive-relief/damages claim was denied; and FLIR’s motion was denied in its entirety while Fluke’s related claims remained contested.
- Key evidentiary disputes included expert testimony and Daubert challenges, with the court noting that some issues would be resolved at trial, particularly regarding the drop-test video and advertising interpretations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is FLIR's Lanham Act false advertising claim about FLIR ads literally false? | FLIR contends FLIR’s ads misrepresent image quality by using high-res images on low-res cameras. | Fluke argues the messages are not literally false and may be explained by display and print considerations; some ambiguity remains. | Fact issue; not literally false as a matter of law. |
| Does FLIR's trade libel/commercial disparagement claim survive Fluke’s summary-judgment challenge? | FLIR claims the drop video falsely represents results and was published with malice. | Fluke contends no false statements about FLIR were made and malice is lacking. | Survives; court denied summary judgment on this claim. |
| Does Sierra’s summary-judgment defeat FLIR’s claims against it on false advertising, trade libel, civil conspiracy, and aiding/assisting? | FLIR argues Sierra aided in false advertising and conspiracy; claims are actionable under Lanham Act and state law. | Sierra asserts lack of standing and no triable issues on the asserted claims. | Grants Sierra’s motion in full; Counts One, Two, Four, and Five eligible for dismissal. |
| Does FLIR obtain summary judgment on Fluke’s IR Fusion trademark validity and laches defenses? | FLIR argues IR Fusion is invalid or barred by laches and seeks judgment on those grounds. | Fluke argues the mark is valid and laches is inapplicable or should be resolved in its favor. | Denied; genuine issues of material fact remain as to validity, descriptiveness/suggestiveness, and laches. |
| Are FLIR’s claims regarding FLIR’s PowerPoint presentations and banana/12 Things materials entitled to summary judgment? | FLIR asserts those materials are false advertising with injurious impact; seeks dismissal of related counterclaims. | Fluke contends injury cannot be established or is insufficient for summary judgment; ongoing disputes of fact remain. | Denied in part; summary judgment not granted on those ground; issues of fact remain as to injury and messaging. |
Key Cases Cited
- Southland Sod Farms v. Stover Seed Co., 108 F.3d 1134 (9th Cir. 1997) (literal falsity can be proven by context and message)
- Time Warner Cable, Inc. v. DIRECTV, Inc., 497 F.3d 144 (2d Cir. 2007) (entire mosaic rule for evaluating ads)
- Castrol, Inc. v. Quaker State Corp., 977 F.2d 57 (2d Cir. 1992) (tests not establishing proposition can render claims literally false)
- Rhone-Poulenc Rorer Pharm., Inc. v. Marion Merrell Dow, 93 F.3d 511 (8th Cir. 1996) (literally false ads may be shown via misleading testing representations)
- Primiano v. Cook, 598 F.3d 558 (9th Cir. 2010) (Daubert standard for admissibility of expert testimony; relevance and reliability)
- Halicki v. United Artists Communications, Inc., 812 F.2d 1213 (9th Cir. 1987) (standing/competitive injury under Lanham Act in advertising cases)
- Fuller Bros., Inc. v. Intl. Mktg., Inc., 870 F. Supp. 299 (D. Or. 1994) (competitors; Lanham Act standing and market competition considerations)