Product Tampering

[borkboing]

What is the name of your state (only U.S. law)? North Carolina

I have a client who makes a biometric safe. There is a competitor who has made several videos showing him lightly tapping the safe on the floor, which allegedly makes the door spring open. This man's videos have been viewed over 7,000 times and are ruining the company's reputation.

This is not reproducable by anyone other than this man. According to the inventor, the only way to do this is by tampering with the internal mechanisms. He once sent one safe back with a damaged lock mechanicsm for a return having made such a video, which was sent directly to my client's existing attorney.

My client refuses to sue the man because his existing lawyers say that as long as he "believes" what he is doing is correct, he cannot be sued. I disagree.

What do you all think?

 

[quincy]

Based on what you have posted here, I disagree with what your friend's existing attorneys said, as well, and I believe your friend should find another attorney, at least to review the matter.

 

[Mass_Shyster]

I would certainly find another attorney.

It's one thing for some kid to post on the internet how to pick a lock. It's another for a competitor to do so.

I'm also involved in an industry that makes locked devices. Our salesmen will demonstrate to the customer how the competing device can be defeated, but we would never even consider releasing this information to the public.

Personally, I would consider that tortious interference with a business relationship, and file a lawsuit accordingly.

 

[antrc170]

I agree with everyone's posted opinion about getting a new attorney. A competitor may show how your product is defective, it's weakness, how its difficult to use,etc. However, they cannot tamper with the product to display a false impression of the product.

 

[quincy]

To expand a bit on all of our responses, a business may sue another business under the Lanham Act (15 United States Code, Section 1125a). All that is necessary for a suit is proof of deceptive advertising (either of one's own product or that of another).

What is required to bring a suit worth pursuing would be proof that false or misleading statements were made about your client's product and there was an actual deception, or a clear intent to deceive, your client's targeted audience, and that interstate commerce is involved (the product "travels" between states).

The deception involved must be one that, through the competitor's advertising videos, influences or intends to influence consumers in their decision to purchase your client's product (or the competitor's product over your client's product), with resulting injury to or a likelihood of injury to the product sales or the reputation of the product or business of your client.

If a court can determine from the evidence presented that your client's competitor used faulty or exaggerated testing to produce the results that he did, or falsified the results of the test, then your client has a better than even chance of winning a false advertising claim against this competitor.

As Stevef mentioned, a tortious interference action may be something your client can consider, as well, if evidence can support a finding that your client's business sales have been directly affected or stand to be directly affected by the videos being displayed, and your client's competitor intentionally "interfered" with these current or potential business relationships. With indications that the competitor falsified test results as a way to "sway" the current and potential consumers of your client's product in their purchase decision, intentional interference could be shown.

As for defamation, this is also a possibility here that should be explored by your client with his NEW attorney. The attorney will want to review the video and the claims that are made by your client's competitor to see if the facts can support such an action.

Belief by a person in the "correctness" of what they are doing is not a defense that is likely to hold up well in court, by the way.

At any rate, we all agree that your client's existing attorneys appear to be wrong in their assessment of your client's ability to bring suit against this competitor - at least based on the facts as you present them here.

Good luck.