Forecast Sales, maker of Pirate Brand abrasive blasting parts and equipment, has filed suit against Axxiom Manufacturing Inc., accusing its competitor of false patent marking.
The suit, filed Oct. 29 in U.S. District Court in Indianapolis, accuses Axxiom of inappropriately promoting itself as “the exclusive manufacturer of the Schmidt® [Manufacturing] brand” when the Schmidt patents expired years before Axxiom was established.
The suit focuses on four inventions originally patented by Schmidt Manufacturing Inc.: the Pipe Side Valve; Sandblasting Methods and Apparatus; Decoy, Mold and Method of Construction; and Portable Abrasive Container and Dispenser Unit. The last item was patented in 1969; the others, in the 1980s, the suit says.
The suit says that the last of those patents expired in 2000, although Axxiom continues to promote its products as Schmidt products.
Claims of Technical Superiority
The suit says Axxiom’s “falsely marked products compete directly with Forecast’s products in the same industry, which includes sandblasting…. The false marking gives credibility, wrongly, to Axxiom’s claims of technical superiority.”
The suit seeks the maximum false marking fine of $500 “for each separate part and each system of abrasive blasting equipment Axxiom has ever marked with numbers of patents that expired as much as 20 years before Axxiom first manufactured them.”
Forecast attorney Craig Pinkus said Monday (Nov. 15) that he could not estimate the total number of parts and systems potentially affected.
Forecast uses the Schmidt name in its materials as comparison examples for its interchangeable after-market parts, in the same way that a generic cold medicine may advertise its ingredients as “comparable to those in” a name brand, said Pinkus. But Forecast does not claim to hold a Schmidt patent or distributorship, Pinkus said.
‘Beware of Pirates’
Axxiom advertising materials promote “genuine Schmidt parts” and have warned customers to “beware of knock-offs and pirates.”
“We are concerned about brand value and reputation when the source of products is confusing to the end-user,” Axxiom president John K. Pirotte said in one company news release.
“Our investment in product development includes an active awareness and concern for reliable product performance and safety in use. Since the specific results of that development investment are proprietary, product imitations may not encompass or consider all of the issues that were considered and engineered into Schmidt brand products.”
Axxiom’s use of the word pirate is “not a complete accident,” said Pinkus. The alleged trademarking of expired patents “is meant to deceive the public.”
Pirotte declined Monday to comment on the suit.
In December 2009, Axxiom sued Forecast in U.S. District Court in Houston, alleging copyright infringement. Axxiom said Forecast had used identical Axxiom part numbers on its Pirate products “and has copied the artwork, look and feel of Axxiom printed materials in an attempt to deceive consumers and cause confusion in the marketplace as to the actual source of abrasive blasting equipment.”
The suit said consumers had “ordered products or parts using Forecast look-alike sales materials with Axxiom part numbers thinking they were buying genuine Axxiom products.”
That case is still “in the starting blocks,” Patrick Smith, Forecast’s attorney in the case, said Monday. However, Smith said there was “absolutely no merit to the argument that there’s confusion” between the two companies’ materials. He called the suit “ill-conceived.”
Axxiom is based in Fresno, TX. Forecast Sales, a division of McCoy Investments Inc., is based in Indianapolis.
The full Forecast complaint is available here.