Antitrust Law Daily Wrap Up, ANTITRUST NEWS: Weber accused of monopolizing portable charcoal kettle grill sales market, (Jun 15, 2016)

By Michael Menzhuber, J.D., LL.M.

Weber-Stephen Products LLC (Weber) has attempted to and has monopolized the market for the sales of portable charcoal kettle grills with three legs, according to a complaint filed in the federal district court in Columbus, Georgia (W.C. Bradley Co. v. Weber-Stephen Products, LLC, June 14, 2016).

The complaint alleges that Weber’s predecessor-in-interest filed a trademark infringement action (prior action) against W.C. Bradley in 1973 in connection with W.C. Bradley’s Char-Broil division’s sale of its William Webster Kettle grill. The parties subsequently reached a settlement agreement (1974 Agreement) which: (1) granted W.C. Bradley the right to continue to market a kettle grill, without restriction to configuration, under any name other than Webster or William Webster; and (2) included a non-exclusive, non-transferable license (under U.S. trademark application Serial No. 413,832), as well as any continuation or substitution of said application.

The complaint further alleges that the Serial No. 413,832 trademark application was initially denied and was only later granted when Weber’s predecessor-in-interest misrepresented the nature of the 1974 Agreement and never corrected the mistaken impression that W.C. Bradley was no longer a competitor and had gone out of business.

In 2014, Char-Broil, LLC (now a separate entity from W.C. Bradley) marketed its Char-Broil Kettleman grill, which was visually and functionally different from the Weber Kettle Marks. In March of 2016, Weber filed a suit against W.C. Bradley that raised essentially the same trade dress infringement claims as it did in the prior action. Shortly after filing the action, Weber directed communications to Char-Broil and purported to disavow the 1974 Agreement.

The complaint alleges that Weber: (1) breached the 1974 Agreement when it purported to terminate the agreement and filed its 2016 lawsuit; (2) attempted monopolization of the sale of portable kettle grills in the United States, in violation of Section 2 of the Sherman Act; (3) possessed monopoly power over the sale of portable kettle grills in the United States, in violation of Section 2 of the Sherman Act; and (4) engaged in unfair competition under Georgia law.

The complaint seeks the following relief: (1) a requirement that Weber disseminate corrective advertising, subject to the plaintiffs’ approval, of Weber’s unlawful conduct and the court’s judgment; (2) an order directing Weber to file a written report, under oath, which details the manner of its compliance; (3) attorney fees and all of the plaintiffs’ costs and expenses of litigation; and (4) any further relief that the court may deem proper and just.

The case is No. 4:16-cv-00195-CDL.

Attorneys: James C. Clark, Jr. and Alan G. Snipes (Page, Scrantom, Sprouse, Tucker & Ford, P.C.) for W.C. Bradley Co. and Char-Broil, LLC.

Companies: W.C. Bradley Co.; Char-Broil, LLC; Weber-Stephen Products LLC

News: Antitrust