Thursday, October 22, 2009

Another way it's hard to plead around Dastar

Robert Bosch LLC v. Pylon Manufacturing Corp., 2009 WL 3366967 (D. Del.)

Bosch moved for reconsideration on its Lanham Act claim. It alleged that Pylon falsely claimed that its partner’s “expertise ... has inspired the development of a high performance, frameless all-weather wiper blade with many innovative features and benefits,” and that these wiper blades “are all new and improved ... adding functional features such as spoilers for improved wiper performance.” But this was allegedly false, because Bosch developed the technology. The court rejected this claim as barred by Dastar; false attribution of authorship can’t be repled as misrepresentation of a good’s characteristics or qualities. Bosch argued that its claim focused on Pylon’s misrepresentations about its “commercial activities”—its R&D. The court thought that pre-marketing R&D activity might not even count as “commercial,” but in any event claiming credit for the activities leading to the development of a product couldn’t be distinguished from claiming credit for the product itself.

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