Makers of tennis racket strings will be going at it in the Northern District of Georgia in a Lanham Act false advertising case over allegedly false claims of coming out on top in an industry product quality survey. It is marketing 101 that a company would rather say its products or services are "preferred" or "No. 1". Case law varies as to whether claiming to be the favorite is a puff or a claim that requires substantiation. Here, there seems to be no dispute that in a survey run by the United States Racquet Stringers Association (USRSA), Gamma Sports came out on top. The complaint of Unique Sports Products, a competing string manufacturer, is that Gamma allegedly played dirty to get its top rating. Both Unique and Gamma offer strings that are used in re-wiring tennis racquets. These products are offered to stringers, who repair and replace the strings used in sports racquets. Many of these stringers are part of the USRSA, which puts out a report on string quality based on a survey of 1000-2000 of its members. In the USRSA's most recent survey, Gamma came out on top as the number one provider of racquet strings. However, Unique claims that this rating is based on manipulated results. Unique alleges that high-level employees at Gamma had subordinates and family members sign up for USRSA memberships (which they were reimbursed for) using fictitious business names. Unique's Complaint further states that none of these individuals were qualified to take the survey, as they had not met the survey's requirement that responders have used the strings of each producer a specific number of times. After obtaining the requisite membership, these employees and relatives purportedly gave Gamma the highest scores while giving competitors' strings the lowest ratings. Unique alleges that Gamma violated the Lanham Act by advertising its strings as having the #1 rating with full knowledge that the relied-upon survey results had been manipulated and that these ads "misrepresent[ed] the nature, characteristics, and qualities of [Gamma]'s goods." The Complaint states that these falsities were "willful and intentional" and damaged the plaintiff's business. Unique further asserts that Gamma "intended for customers to reply upon" the false rankings and that customers were in fact deceived by these advertisements. Because of what Unique says are the "exceptional" circumstances of this case, it is seeking treble damages on the Lanham-Act claim, as well as attorneys' fees. While, until relatively recently, damages at all were fairly rare in Lanham Act false advertising cases, and certainly enhanced damages even rarer. The few such cases on record are typically reserved for cases where the defendant engaged in willful and malicious false advertising. It also asserts counts under state consumer protection laws. – Amy Mudge and Michael Thorpe
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