United States District Court, S.D. Texas, Houston Division
Boltex Manufacturing Company, L.P., and Weldbend Corporation, Plaintiffs,
Galperti, Inc. and Officine Nicola Galperti e Figlio S.p.A. Defendants.
MEMORANDUM OPINION AND ORDER
H. MILLER, SENIOR UNITED STATES DISTRICT JUDGE
before the court is defendants Officine Nicola Galperti e
Figlio S.p.A. (“ONG”) and Galperti, Inc.'s
“Defendants”) motion for summary judgment. Dkt.
146. Plaintiffs Boltex Manufacturing Company, L.P.
(“Boltex”) and Weldbend Corporation
“Plaintiffs”) responded. Dkt. 191. Defendants
replied. Dkt. 224. Also pending before the court is
Plaintiffs' motion for summary judgment. Dkt. 130.
Galperti responded. Dkt. 178. Plaintiffs replied. Dkt. 214.
Having considered the motions, responses, replies, and
applicable law, the court is of the opinion that both motions
should be GRANTED.
a false advertising and unfair competition case. Dkt. 1 at
1-3. This dispute centers on the process of normalization.
Id. at 1, 8. Normalization is a costly heat
treatment process that changes the physical composition of
carbon steel to increase its toughness and ductility.
Id. The American Society of Testing and Materials
sets out standards that require manufacturers to apply heat
treatment to certain types of flanges. Id. at 8-9.
There are several different methods available for heat
treatment, including normalization. Id. at 9.
Although it is not required by the standards, many customers
require that certain flanges be normalized. Id.
Plaintiffs and Defendants manufacture carbon steel flanges.
Id. at 1-3. Plaintiffs sued Defendants for false
advertising and unfair competition in violation of the Lanham
Act, 15 U.S.C. § 1125(a), as well as common law unfair
competition. Id. at 23. Plaintiffs allege that
Defendants advertise their flanges as
“normalized” when they are not. Specifically,
Plaintiffs allege that Defendants falsely advertise when
they: (1) stamp their flanges as normalized; (2) indicate
normalization in a Mill Test Report; (3) advertise their
flanges in catalogs, brochures, price lists, and web sites of
third party distributors of Defendants' flanges; and (4)
indicate that their flanges were normalized in emails with
potential customers. Id. at 11; Dkt. 77-1 at 9; Dkt.
77-2 at 7-8.
counterclaimed that: (1) Plaintiffs Boltex and Weldbend
falsely advertised their products as “Made in the
USA” and/or “American Made”; (2) Weldbend
made misrepresentations regarding the
“traceability” of its flanges and yield strength;
and (3) Boltex made misrepresentations in the Reference
Manual published on its website. Dkt. 46. Both parties have
moved for summary judgment. Dkt. 146; Dkt. 130.
shall grant summary judgment when a “movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). “[A] fact is genuinely in dispute
only if a reasonable jury could return a verdict for the
nonmoving party.” Fordoche, Inc. v. Texaco,
Inc., 463 F.3d 388, 392 (5th Cir. 2006). The moving
party bears the initial burden of demonstrating the absence
of a genuine issue of material fact. Celotex Corp. v.
Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548 (1986). If
the moving party meets its burden, the burden shifts to the
non-moving party to set forth specific facts showing a
genuine issue for trial. Fed.R.Civ.P. 56(e). The court must
view the evidence in the light most favorable to the
non-movant and draw all justifiable inferences in favor of
the non-movant. Envtl. Conservation Org. v. City of
Dallas, 529 F.3d 519, 524 (5th Cir. 2008).
prove a false advertising claim under the Lanham Act, a
plaintiff must establish: (1) a false or misleading statement
of fact about a product; (2) such a statement either
deceived, or had the capacity to deceive a substantial
segment of potential customers; (3) the deception is
material, in that it is likely to influence the
consumer's purchasing decision; (4) the product is in
interstate commerce; and (5) the plaintiff has been or is
likely to be injured as a result of the statement at issue.
Derrick Petrol. Servs. v. PLS, Inc., Civil Action
No. H-14-1520, 2017 WL 3456920, at *5(S.D. Tex. Aug. 11,
2017) (Rosenthal, J.) (internal alterations omitted) (quoting
Pizza Hut, Inc. v. Papa John's Int'l, Inc.,
227 F.3d 489, 495 (5th Cir. 2000)). “The failure to
prove the existence of any element of the prima facie case is
fatal to the plaintiff's claim.” Id.
Defendant's Motion for Summary Judgment
False Advertising in Violation of the Lanham Act
argue that Plaintiffs' claim for false advertising in
violation of the Lanham Act cannot survive summary judgment
because, inter alia, Plaintiffs cannot show injury.
Dkt. 146 at 12-31.
the Lanham Act, a plaintiff must establish that he has been
injured or is likely to be injured. Derrick Petrol.
Servs., 2017 WL 3456920, at *5. To prove injury, a
plaintiff must provide evidence that consumers would have
bought the plaintiffs' products instead of those of the
defendant in the absence of the allegedly false and
misleading statements. IQ Prod. Co. v. Pennzoil Prods.
Co., 305 F.3d 368, 376 (5th ...