Motion to dismiss unfair competition claim granted where ad was plainly comparative

Forest River, Inc. v. Heartland Recreational Vehicles, LLC, NO. 3:10-CV-11-TS (N.D. Ind. 2010)

HT Eric Goldman.

RV plans aren’t protected architectural works, and the sale of RVs can’t be the basis for damages even if the RVs are made from infringing copies of copyrighted technical drawings. On a motion to dismiss, the court ruled that the use of plaintiff’s technical drawing of its RV floor plans in a comparative ad might or might not be fair use. Apparently the defendant copied the drawing twice: once to show plaintiff’s design and once to show defendant’s allegedly identical design. That was an expensive copy, though as Eric points out the parties are in a litigation deathmatch anyway.

Plaintiff also alleged that defendant’s conduct constituted unfair competition. This was not accompanied by a sufficiently plausible factual basis to state a claim. The claim was based on defendants’ comparative advertising “which [was] intended to confuse and/or deceive customers into thinking about some connection with [the Plaintiff].” (That’s a broad allegation even for modern trademark doctrine!) But the ad on its face was a comparative ad. The plaintiff didn’t allege infringement of any source identifier or passing off. “The comparison advertisement clearly identifies MPG and R.Pod as competing products, and the Plaintiff has not alleged any fact from which it can be inferred that the comparison is misleading. Thus, the Plaintiff has not set forth a plausible Lanham Act claim.” Because “there are no facts from which it can be inferred that the ‘connection’ provoked by the advertisement extended beyond that of market competitors attempting to sell a similar product,” the allegations did not survive a motion to dismiss.