Whose board is it, anyway?
The catalog photo plaintiffs say defendants altered
A false advertising claim over competing stand-up paddle boards has ridden the litigation wave all the way to Seattle.
On March 9, plaintiffs Jimmy Lewis and Fuacata Sports LLC filed suit against competitors Trident Performance Sports Inc. and Starboard World Limited, alleging that defendants included a photo in their catalog showing one of plaintiffs’ custom, high-performance boards in competition — altered, so it appers to depict one of defendants’ production boards.
Plaintiffs’ complaint states that “[d]efendant Starboard World Limited created a 2011 Starboard SUP [Stand Up Paddleboard] product catalogue which incorporates a picture of a Starboard-sponsored athlete riding a Jimmy Lewis custom ‘gun’ board in extremely challenging Maui surf conditions. This photograph was placed on the same page as the Starboard Pro Wave ‘gun’ board, which was a new edition to the Starboard SUP product line. The photograph, found on page 52 of the 2011 Starboard SUP catalogue, was digitally altered to add Starboard Pro Wave pin [striping], carbon brush markings and a faint impression of the Starboard logo in order to lead consumers to believe the Jimmy Lewis custom board was the 2011 Starboard Pro Wave board. The depicted board was undeniably custom made by Jimmy Lewis and delivered as a blank board to the Starboard team rider.”
The complaint alleges that defendants used a similar photo in a national advertising campaign as well.
Plaintiffs allege defendants’ acts amount to “reverse passing off,” a legal theory in which the defendant “passes off” the plaintiff’s product as its own.
Defendants have not yet answered plaintiffs’ complaint.
The case cite is Jimmy Lewis v. Trident Performance Sports, Inc., No. 12-415 (W.D. Wash.).