Opinion
No. 03 C 50146
August 7, 2003
MEMORANDUM OPINION AND ORDER
MEMORANDUM OPINION AND ORDER
Plaintiff, Fisher Paykel Appliances, Ltd. ("Fisher") filed a claim against LG Electronics, Inc. "LG") and LO Electronics U.S. A., Inc. ("LG USA") in this court alleging patent infringement under 35 U.S.C. § 271 et seq. (Count I) and a violation of § 43(a) of the Lanham Act, codified at 15 U.S.C. § 1125 (a) (Count II). Fisher holds the patent for an "Electric Motor for Clothes Washing Machine," U.S. Patent No. 5, 266, 855 (""855 patent"). (P1. Comp., p. 2) Fisher claims LG has imported washing machines into the United States which embody the "855 patent, while both LG and LG USA have sold and used washing machines embodying Fisher's patent. Fisher also alleges both LG and LG USA have advertised that they "incorporate `exclusive direct drive' motor technology in the washing machines they manufacture, import and sell," (Pl. Comp., p. 3) LG and LG USA tiled a motion to dismiss Count II under Fed.R.Civ.P. 12 (b)(6), which is currently before this court. LG argues Fisher has failed to allege all five elements necessary to successfully state a claim under the Lanham Act. Jurisdiction is proper under 28 U.S.C. § 1331.
The elements of a claim for false advertising under the Lanham Act are "that the defendant (1) made a false or misleading statement, (2) that actually deceives or is likely to deceive a substantial segment of the advertisement's audience, (3) on a subject material to the decision to purchase the goods, (4) touting goods entering interstate commerce, (5) and that results in actual or probable injury to the plaintiff. "B. Sanfield, Inc.. v..Finlay Fine Jewelry Corp., 168 F.3d 967, 971 (7th Cir. 1999). In pleading a false advertising claim, plaintiff must meet the heightened pleading requirements of Fed.R.Civ.P. 9(b). See Hot Wax. Inc. v. Grace-Lee Products, No. 97 C 6882, 1998 WL 664945, at *3.4 (ND. Ill. Apr. 15, 1998) (Nordberg, J.); see also B. Sanfield. Inc. v. Finlay Fine Jewelry Corp., 857 F. Supp. 1241, 1243-1244 (N.D. 111. 1994) (Reinhard, J.). In its complaint Fisher alleges that LG and LG USA made a false statement in an advertisement, but makes no allegations concerning the when and where of the statement, see B. Sanfield, 857 F. Supp at 1242, nor of the injury sustained by plaintiff. Plaintiff must provide such allegations in order to proceed on Count II.
Accordingly, LG and LG USA's motion to dismiss Count II of the complaint is granted. Count II is dismissed without prejudice. Plaintiff is granted 30 days to file an amended Count II.