Flir v. Fluke

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False Advertising and Trademark Infringement Case, Two Week Jury Trial — $4 Million Awarded on Trademark Counterclaim

In a case that required two separate but simultaneous decisions — the first a false advertising claim and the second a trademark infringement counterclaim — the two largest producers of handheld infrared camera technology fought for the rights to an important market innovation.

By Design’s client, Fluke Corporation, created a technology that captures a visible light image in addition to the infrared thermal image and makes image analysis simpler and more accurate. Fluke was first to market with this technology, called IR Fusion, and the company’s singular focus on that product resulted in the production of beautiful, industry-best products.

Despite reaching market later, FLIR Systems brought the initial suit — a false advertising case spurred by the release of a video comparing the durability of Fluke’s cameras compared to the competition, including FLIR’s own product — stating that Fluke manipulated data used in the video and represented it as sales material. Fluke and By Design countersued on the basis of trademark infringement.

During the trial it was discovered that FLIR had kept internal documentation stating their intention to aggressively attack Fluke’s trademark and confuse the market by pouring millions of advertising dollars in support of that attack. By Design ran a series of exhibits and video deposition to demonstrate FLIR’s campaign of misinformation and trademark infringement.

After weeks of intense, round-the-clock preparation, Fluke successfully defended its trademark and continues as an innovator in IR Fusion and other infrared camera technologies.

Clients: Williams & Connolly LLP and Lane Powell PC