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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