Tuesday, August 06, 2013

image of P's product on D's site was insufficient evidence of passing off

Milos Misha Subotincic v. 1274274 Ontario Inc., 2013 WL 3964994 (C.D. Cal. April 9, 2013)

Plaintiffs, along with their patent infringement claim, alleged that defendants engaged in unfair competition and other torts.  The court granted summary judgment to defendants on the Lanham Act and coordinate state causes of action.  The claim was based on defendants’ use of video on a website that showed plaintiffs’ component (known as end effectors) as part of a larger system.

Actionable passing off includes “the use of a competitor’s advertising material, or a sample or photograph of the competitor’s product, to impliedly represent that the product being sold is made by the competitor.”  However, plaintiffs provided only an unauthenticated website screen shot.  There was no basis to infer that the end effectors in the screen shot were plaintiffs’.  Even assuming that to be the case, the screen shot showed that the website didn’t make any representation about what end effector was used in the system.  There were no identified express or implied claims about who originally produced each component of the overall system, nor claims about what products defendants currently sold.  The website simply stated that it showed videos of the prior implementations of the multi-part systems at issue.  And defendants bought genuine end effectors made by plaintiffs until they started to make their own (allegedly infringing) devices. Thus, there was no evidence in the record to support a passing off claim.   (See also: applications of Dastar.)

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