Antitrust Law Daily Wrap Up, ADVERTISING—E.D. Va.: Denial of summary judgment on false ad claims not reconsidered, (Apr 6, 2015)

By Linda O’Brien, J.D., LL.M.

In an action alleging that an aquarium lighting manufacturer made false advertising claims regarding technical advances in its new lighting tubes, the federal district court in Alexandria, Virginia has denied reconsideration of its order denying summary judgment of the claims (D-D The Aquarium Solution Limited v. Giesemann Lichttechnik und Aquaristik GmbH, April 1, 2015, Brinkema, L.).

For nearly ten years, D-D The Aquarium Solution Limited of the U.K. had an agreement to distribute fluorescent tubes made by Giesemann Lichttechnik und Aquaristik of Germany, using the mark “POWERCHROME,” along with Giesemann’s own mark and D-D “bubble logo” mark. In May 2014, Giesemann terminated the arrangement and announced plans to distribute a new line of tubes using another company, Vue Technology, LLC, as its North American distributor. Giesemann also disclosed to D-D that it had registered the POWERCHROME mark with the U.S. Patent and Trademark Office.

D-D filed suit against Giesemann, alleging, in part, that the German manufacturer made false advertising claims about its new lighting tubes in violation of the Lanham Act. Giesemann responded by filing counterclaims for infringement of the POWERCHROME and Giesemann marks. The court denied Giesemann’s motion for summary judgment regarding the Lanham Act false advertising claim, and Giesemann moved for reconsideration.

In denying Giesemann’s motion for reconsideration, the court found that D-D presented sufficient evidence to establish a material dispute as to the truth or falsity of Giesemann’s statements that the new line of tubes was a technical improvement over the former D-D and Giesemann line. A motion for reconsideration must rely on (1) an intervening change in the controlling law; (2) the availability of newly discovered evidence; or (3) the need to correct manifest errors of law or fact, the court explained.

In this case, Giesemann had challenged the evidence regarding the falsity of its statements that the new tubes used “new advances” in the relevant technologies and that the tubes produced more of a certain type of radiation and contended that there was no evidence that the statements were false. D-D presented evidence from Giesemann that the old and new tubes used the same technology and the last change in technology was introduced in 2013. According to the court, the evidence created a material factual dispute. Furthermore, D-D alleged sufficient evidence to show actual consumer confusion at the current stage of the litigation.

The case is No. 1:14-cv-00846-LMB-IDD.

Attorneys: Warren Arthur Zitlau (Cahn & Samuels LLP) for D-D The Aquarium Solution Ltd. Katie Bukrinsky (McDermott Will & Emery LLP) for Giesemann Lichttechnik und Aquaristik GmbH and Vue Technology, LLC

Companies: D-D The Aquarium Solution Ltd.; Giesemann Lichttechnik und Aquaristik GmbH; Vue Technology, LLC

Cases: Advertising VirginiaNews