HARRISBURG, Pa.-A federal judge ruled Sept. 14 that Canada-based Counteract Balancing Beads Inc. must pull any advertising that claims its tire-balancing product adheres to the inside of a tire as a result of electrostatic cling.
The ruling, by Judge J. Andrew Smyser of the U.S. Federal Court for the Middle District of Pennsylvania in Harrrisburg, was a victory for International Marketing Inc. (IMI) which had sued Counteract Balancing Beads (CBB) of Georgetown, Ontario, for false advertising. The suit-which sought an injunction against CBB's advertising claims-went to trial Aug. 6-9.
Chambersburg, Pa.-based IMI filed suit against CBB in April 2000 after it tested CBB's product and could not duplicate the results described in the Canadian firm's ads. IMI manufactures and markets Equal, a dry granular polymer that is placed inside a tire through the valve system to help maintain balancing. CBB manufactures and sells glass beads, a competitive product to Equal, that also are inserted into truck tires for the purpose of balancing. Those beads and how exactly they achieve tire balancing are the subjects of the suit.
IMI President and CEO Bob Fogal Jr. said his company chose to challenge CBB's advertising claims after IMI conducted several tests on CBB's product-including on a dynamometer, a tire balancer and road tests. He said the company wants to maintain the integrity of tire-balancing products by setting the record straight about CBB's ads and differentiating its own Equal product from CBB.
Judge Smyser ordered that ``IMI is entitled to a permanent injunction enjoining Counteract from representing that its glass beads employ electrostatic cling.'' The court concluded that IMI had ``proved by a preponderance of the evidence that (CBB's) product does not work as advertised and that the representations made in the advertisements are not true.''
IMI had submitted to the court test results done by independent experts in electrostatics and tire dynamics, and argued that lab tests couldn't reproduce an electrostatic charge using the glass beads manufactured by CBB, the judgment stated.
CBB had produced testimony from some customers as well as by a materials engineer who had conducted glass-rubber electrostatical testing. However, the court found that CBB had not proven through scientific methodologies that its product stuck to the inside of a tire due to static electricity as opposed to other possible factors, such as:
* The presence of lubricant;
* Tacky mold used to ease separation of a tire from the mold; and
* That the beads could have lodged into ridges on the inner surface of the tire.
The court further ruled that although CBB holds a patent on its internal-balancing product, it does not have ``the right to an inviolate assertion that the product works in the manner that it is claimed in advertisements to work'' even though those same claims were made on the patent application.
CBB will appeal the decision and said it will use the words ``Counteract Kinetic Cling Balancing Beads'' when describing its product in all of its ads, according to a prepared statement. The company said it stands behind its product and noted that ``it is only our competitors who have been complaining about our product.''
Roger LeBlanc, CBB president, said that the company has been ``growing like wildfire,'' since he founded it in 1997 and now distributes its balancing bead product to 25 countries. He called IMI a ``vicious company'' that has been ``using the court system'' against his firm.
``We've had compliments on our product (from customers) every day,'' Mr. LeBlanc said. ``It's a fabulous product.''
CBB posts $1.5 million (U.S) in sales for North America and $1 million outside of North America, according to Mr. LeBlanc.
The case will be heard by the U.S. Court of Appeals for the Middle District of Pennsylvania in Harrisburg.