{ "id": 8554328, "name": "HARRINGTON MANUFACTURING COMPANY, INC. v. POWELL MANUFACTURING COMPANY, INC.", "name_abbreviation": "Harrington Manufacturing Co. v. Powell Manufacturing Co.", "decision_date": "1978-11-07", "docket_number": "No. 776SC602", "first_page": "393", "last_page": "405", "citations": [ { "type": "official", "cite": "38 N.C. App. 393" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "97 S.Ct. 722", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1977, "opinion_index": -1 }, { "cite": "50 L.Ed. 2d 743", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1977, "opinion_index": -1 }, { "cite": "429 U.S. 1031", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 7424, 7307, 7692, 6668, 7538, 8094 ], "year": 1977, "opinion_index": -1, "case_paths": [ "/us/429/1031-05", "/us/429/1031-04", "/us/429/1031-03", "/us/429/1031-06", "/us/429/1031-02", "/us/429/1031-01" ] }, { "cite": "228 S.E. 2d 454", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "opinion_index": -1 }, { "cite": "290 N.C. 662", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563490, 8563467, 8563436, 8563535, 8563567 ], "year": 1976, "opinion_index": -1, "case_paths": [ "/nc/290/0662-03", "/nc/290/0662-02", "/nc/290/0662-01", "/nc/290/0662-04", "/nc/290/0662-05" ] }, { "cite": "226 S.E. 2d 173", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "opinion_index": -1 }, { "cite": "30 N.C. App. 97", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8552139 ], "year": 1976, "opinion_index": -1, "case_paths": [ "/nc-app/30/0097-01" ] }, { "cite": "217 S.E. 2d 679", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "opinion_index": -1 }, { "cite": "288 N.C. 242", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565927, 8565960, 8565996, 8566033, 8566078 ], "year": 1975, "opinion_index": -1, "case_paths": [ "/nc/288/0242-01", "/nc/288/0242-02", "/nc/288/0242-03", "/nc/288/0242-04", "/nc/288/0242-05" ] }, { "cite": "216 S.E. 2d 379", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "opinion_index": -1 }, { "cite": "26 N.C. App. 414", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8552991 ], "year": 1975, "opinion_index": -1, "case_paths": [ "/nc-app/26/0414-01" ] }, { "cite": "50 N.C.L. Rev. 199", "category": "journals:journal", "reporter": "N.C. L. Rev.", "year": 1972, "pin_cites": [ { "page": "248" } ], "opinion_index": 0 }, { "cite": "20 S.E. 2d 59", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1942, "pin_cites": [ { "page": "61" } ], "opinion_index": 0 }, { "cite": "221 N.C. 269", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627468 ], "year": 1942, "pin_cites": [ { "page": "273" } ], "opinion_index": 0, "case_paths": [ "/nc/221/0269-01" ] } ], "analysis": { "cardinality": 1018, "char_count": 27586, "ocr_confidence": 0.82, "pagerank": { "raw": 5.130727893126113e-07, "percentile": 0.938935436004184 }, "sha256": "ac836a5b50916752606d722e84f92049079e0db525ae60b63023e55822273e70", "simhash": "1:226bf4835477bbd7", "word_count": 4285 }, "last_updated": "2023-07-14T21:32:33.594298+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges VAUGHN and WEBB concur." ], "parties": [ "HARRINGTON MANUFACTURING COMPANY, INC. v. POWELL MANUFACTURING COMPANY, INC." ], "opinions": [ { "text": "PARKER, Judge.\nPLAINTIFF\u2019S APPEAL\nOn plaintiff Harrington\u2019s appeal, Harrington assigns error to the granting of Powell\u2019s motion dismissing Harrington\u2019s action by way of summary judgment. Defendant Powell contends the summary judgment was properly entered and cross-assigns as error the denial of its earlier motion to dismiss Harrington\u2019s complaint under Rule 12(b)(6) for failure to state a claim upon which relief can be granted.\nIn substance, plaintiff Harrington alleged in its complaint that defendant Powell had advertised falsely that its tobacco combine was the only one which \u201cprimes lugs through tips\u201d and that it owned the \u201cexclusive CutterBar\u201d for priming tips, that these statements were not true in that Harrington also manufactured a tobacco harvester which primed lugs through tips and also held a license to manufacture and sell the same device advertised by Powell as its \u201cexclusive CutterBar,\u201d and that such false advertising by Powell constituted an unfair method of competition with Harrington and was a deceptive act declared unlawful by G.S. 75-l.l(a). Plaintiff Harrington further alleged that Powell\u2019s untrue advertisements had damaged plaintiff in the sum of $10,000,000.00, for which it prayed that it be awarded treble damages under G.S. 75-16.\nWe note initially that Chap. 747 of the 1977 Session Laws, which rewrote Subsections (a) and (b) of G.S. 75-1.1, is not applicable to the present case. This action was pending when the 1977 act was adopted, and Sec. 5 of that act expressly provides that it shall not apply to pending litigation. Therefore, as applicable to this case G.S. 75-1.1 is the form of that statute as it existed prior to the 1977 amendment, and the further references to that statute in this opinion will be to the statute as it was originally adopted in 1969 and as it read when this case was instituted. At that time, G.S. 75-1.1(a) and (b) read:\n(a) Unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful.\n(b) The purpose of this section is to declare, and to provide civil means to maintain, ethical standards of dealings between persons engaged in business, and between persons engaged in business and the consuming public within this State, to the end that good faith and fair dealings between buyers and sellers at all levels of commerce be had in this State.\nAt the outset, we consider and reject defendant Powell\u2019s contention, asserted as one of its grounds for sustaining the summary judgment and also as a ground in support of its cross-assignment of error, that G.S. 75-1.1 does not apply to disputes between competitors but only to \u201cdealings\u201d between \u201cbuyers and sellers.\u201d From this, Powell argues that, there having been no \u201cdealings\u201d between it and Harrington as \u201cbuyers and sellers,\u201d G.S. 75-1.1 can have no application to this case. We do not so narrowly read the statute. G.S. 75-1.1(a) expressly proscribes \u201c[u]nfair methods of competition,\u201d and competition necessarily requires that there be a competitor. G.S. 754.1(b) speaks in terms of declaring and providing civil means of maintaining ethical standards of dealings \u201cbetween persons engaged in business,\u201d as well as between such persons and the consuming public. We hold, therefore, that G.S. 75-1.1 is applicable to the transactions alleged in plaintiff\u2019s complaint. The question presented by plaintiff\u2019s appeal thus becomes whether, when that statute and any applicable common law principles are properly applied to the material facts as to which no genuine issue has been shown, defendant was as a matter of law entitled to the summary judgment dismissing plaintiff\u2019s action. We hold that it was.\nAffidavits, depositions, and answers to interrogatories show that there is no genuine issue as to the following facts:\nPowell placed the following advertisement in the September and October 1974 issues of The Progressive Farmer and in the 5 September 1974 issue of Southeast Farm and Livestock Weekly.\nIF YOU ALREADY OWN A POWELL TOBACCO COMBINE, SHOW THIS AD TO YOUR NEIGHBOR.\nHE WANTS TO STAY IN BUSINESS TOO:\nLike you, with labor high, hard to find and harder to keep, most tobacco growers have no choice. They have to mechanize to stay in business.\nPowell\u2019s exclusive, proven system of Total Tobacco Mechanization is the answer. It\u2019s flexible . . . you start on any scale you want and add to it each year.\nConsider the high-capacity Powell Tobacco Combine. Used with Powell Bulk Curing/Drying Systems, it can cut your total harvest labor to just 4 people! (Driver, Transporter, 2 Rack & Barn Loaders.) This high capacity machine enables you to harvest one acre per hour with this small crew.\nAnd only the Powell Combine primes lugs through tips. Our FlexBar header, plus exclusive CutterBar for priming tips, gets the job done.\nMechanize the Powell Way. Start now for \u201875-Advance planning is the key. Ask Powell to help. Mail the coupon today.\nPowell also had the following advertisement broadcast on four dates in August 1974 from television stations in High Point, Raleigh, and Greenville, North Carolina, and from television stations in Florence, South Carolina, and Albany, Georgia:\n\u201cTotal Mechanization\n\u201cWith this year\u2019s tobacco crop season winding up, it\u2019s not a day too soon to begin planning next year\u2019s crop, and how you\u2019ll handle it.\n\u201cWith labor high and hard to find, most growers have no choice. They must mechanize to stay in business.\n\u201cUsually you\u2019d begin by installing one or more Powell bulk curing systems, like these Powell three-tier mobile units. This high-capacity, efficient system can cut both your curing labor and fuel costs in half.\n\u201cThen there\u2019s the proven, high-capacity Powell tobacco combine, that harvests an acre an hour \u2014 usually with just one man \u2014 the driver. It\u2019s the only combine on the market \u201cthat primes lugs through the tips.\n\u201cAlso the two or four row Powell Aerotopper, to top and spray your crop . . .\n\u201cAnd single and multi-row Powell transplanters, with once-over fertilizer units.\n\u201cThat\u2019s Total Tobacco Mechanization . . . pioneered by Powell. Talk to your Powell dealer. Start planning now for seventy-five.\u201d\nPowell has manufactured and sold its \u201cCutterBar\u201d since 1962. \u201cCutterBar\u201d is a descriptive term used exclusively by Powell to describe a mechanical tobacco harvesting device consisting of a blade assembly which operates on the principle of utilizing blades revolving with an upward cutting motion to cut leaves from the tobacco stalk. This blade assembly was invented by Dr. William Splinter of North Carolina State University, and it is sometimes referred to as the \u201cSplinter knife type defoliator.\u201d The patent rights on this invention were assigned by North Carolina State University to Research Corporation of America, which in turn granted Powell a license to manufacture and sell machines covered by the patent. From March 1962 until 15 November 1974 Powell was the only firm licensed under the Splinter patent. On 15 November 1974 Research Corporation of America granted Harrington a license to manufacture under the patent. Both the license granted to Powell and the license granted to Harrington were non-exclusive.\nBeginning in 1967 Harrington has also manufactured a fully automotic tobacco harvester which it has advertised and sold under the name \u201cRoanoke Automatic Tobacco Harvester.\u201d Prior to the fall of 1974 this machine utilized a revolving rubberized spiral type defoliator to wipe the leaves from the stalk in a downward motion. This machine would prime lugs through tips. In August 1974 an employee of Harrington purchased a Powell \u201cCutterBar\u201d from Revelle Tractor Company. This unit, which had been manufactured by Powell, was brought to Harrington\u2019s plant in Lewiston, North Carolina, where it was incorporated into one of Harrington\u2019s automatic tobacco harvesters. Harrington added a hydrosynchronizer, a device which had been invented by Harrington\u2019s engineers, which synchronized by hydraulics the timing of the knife of the blade assembly with the forward motion of the harvester. On 28, 29, and 30 September 1974 Harrington broadcast a commercial over television stations in Greenville and Durham, North Carolina, and in Roanoke, Virginia. The video portion showed a blade assembly operating in a tobacco field and this was accompanied by the following audio announcement:\nMr. Tobacco Farmer:\nAttend the Roanoke Automatic Tobacco Harvester Demonstration Monday, September 30; Tuesday, October first. See the Roanoke Automatic Tobacco Harvester using the Roanoke Hydro-Synchronized Blade Assembly. The Hydro-Synchronized Blade Assembly is a Dramatic BreakThrough in harvesting tobacco. For information and direction, call Harrington Manufacturing Company, Lewiston, North Carolina.\nAs advertised in this commercial, Harrington demonstrated its automatic harvester, to which the Powell \u201cCutterBar\u201d had been attached, to some three hundred farmers who came from Eastern North Carolina, South Carolina, and Georgia. Harrington did not tell them it was a Powell \u201cCutterBar\u201d that they were looking at. Harrington took approximately fifteen orders for its Hydrosyn-chronized blade assembly for delivery before the 1975 tobacco season.\nThe list price for a fully equipped 1974 Powell tobacco combine was $16,398.60. The retail price of a 1974 standard Harrington Roanoke harvester was $16,500.00.\nAs above noted, the gravamen of plaintiff Harrington\u2019s complaint is that Powell violated G.S. 75-1.1 by falsely advertising that Powell\u2019s tobacco combine was the only one which primed lugs through tips and that it owned \u201cthe exclusive CutterBar for priming tips.\u201d As to this latter charge concerning the CutterBar, the only reference made to this device by name in the advertisement of which Harrington complains was in the sentence which stated, \u201cOur FlexBar header, plus exclusive CutterBar for priming tips, gets the job done.\u201d It is undisputed that at the time this advertisement appeared in 1974 and for some twelve years prior thereto, Powell was in fact the only company which held a license to manufacture and sell the patented device to which it gave the name \u201cCutterBar.\u201d It was not until 15 November 1974, approximately two months after this case was instituted, that Harrington obtained a similar license. Under these circumstances the reference in Powell\u2019s advertisement to \u201cexclusive CutterBar\u201d was neither false nor misleading. Publishing an advertisement which is neither false nor misleading is not an unfair method of competition or unfair or deceptive act or practice within the meaning of G.S. 75-1.1.\nAs to the statement in Powell\u2019s advertisement that \u201conly the Powell Combine primes lugs through tips,\u201d Harrington contends that the logical implication of such a statement is that Harrington\u2019s automatic tobacco harvester did not prime lugs through tips, that this was untrue, and that the making of such a disparaging statement constituted an unfair method of competition and was an unfair or deceptive act declared unlawful by G.S. 75-1.1(a). If it be conceded that the disparaging implication of which Harrington complains may be drawn from the Powell advertisement as a matter of strict logic, it does not necessarily follow that the making of the advertisement, in the context of this case, comes within the ambit of unfair conduct proscribed by the statute. Unfair competition has been referred to in terms of conduct \u201cwhich a court of equity would consider unfair.\u201d Extract Co. v. Ray, 221 N.C. 269, 273, 20 S.E. 2d 59, 61 (1942). Thus viewed, the fairness or unfairness of particular conduct is not an abstraction to be derived by logic. Rather, the fair or unfair nature of particular conduct is to be judged by viewing it against the background of actual human experience and by determining its intended and actual effects upon others. The experience of our times is that a certain amount of puffing of one\u2019s own goods, even when the logical implication is to disparage the goods of another, has long been prevalent in our culture. Whether such puffing in the case of particular advertisement exceeds the bounds of fairness must be determined by viewing it against the background of all of the relevant facts of that case. One relevant fact concerns the market which the advertisement is designed to influence. A false advertisement designed to influence the buying habits of children should be judged by stricter standards than one directed only toward the knowledgeable and sophisticated. In the present case Powell\u2019s advertisement concerned a machine which cost in excess of $16,000.00. It was directed to farmers who could afford such a substantial investment and whose operations had been sufficiently successful that they had grown big enough to justify the use of such expensive equipment. Buyers of this type would not normally make such a large capital outlay by relying solely upon a magazine advertisement or a radio or television broadcast, especially when accurate technical information concerning the item was readily available. It is our opinion, and we so hold, in the context of this case Powell\u2019s advertisement did not constitute unfair competition or an unfair or deceptive act within the meaning of G.S. 75-1.1.\nThe order granting defendant\u2019s motion for summary judgment is\nAffirmed.\nDEFENDANT\u2019S APPEAL\nDefendant Powell appeals from the order granting plaintiff\u2019s motion under Rule 12(b)(6) dismissing defendant\u2019s three counterclaims for failure to state a claim upon which relief can be granted.\nPowell\u2019s first and third counterclaims (alleged in its \u201cFourth Defense\u201d and \u201cSixth Defense\u201d respectively) present essentially the same question as was presented by plaintiff\u2019s appeal.\nIn its first counterclaim, Powell complains that the following advertisements published by Harrington were untrue, disparaged Powell\u2019s tobacco combine, and were unfair within the meaning of G.S. 75-1.1:\n\u201cRoanoke\u2019s \u201976 Model Automatic Tobacco Primer . . . years ahead of any other automatic harvester.\u201d\n\u201cRoanoke was the \u201974 field champion.\u201d\n\u201cRoanoke Automatic Tobacco Primer, the one that really works; a dramatic breakthrough in tobacco harvesting.\u201d\n\u201cRoanoke\u2019s \u201974 Model Automatic Tobacco Primer is years ahead of any other automatic tobacco harvester on the market.\u201d\n\u201cHarrington Manufacturing Company, Inc. has announced a new tobacco harvester component which was demonstrated to tobacco harvester dealers and farmers in the U.S. and Canada.\nA blade defoliator that gets all the leaves on the upper half of the stalk without getting all the suckers is working very effectively, say the developers.\u201d\nPowell alleged that the foregoing advertisements by Harrington damaged Powell\u2019s business reputation and the business reputation of its machines in the sum of $10,000,000.00, and it prayed recovery of treble damages under G.S. 75-16.\nIn its third counterclaim, Powell complains about an advertisement published by Harrington that Harrington\u2019s tobacco curing barns have the \u201clargest capacity rack\u201d and that it has \u201cthe only bolted rack on the market \u2014 no welding or self-tapping set screws.\u201d Powell also complained concerning a Harrington advertisement which proclaimed:\nLoading Capacity Unequaled\nThe Roanoke Bulk Tobacco Curing Rack is the brute of the industry. It\u2019s designed for heavy loading for fuel savings. Its capacity is unequaled \u201413% larger than Long, stronger than Powell. The Roanoke Rack has 5 more tines than the Powell Rack \u2014 more tine support for more holding power, less fallout. Strong cradle section allows full packing. The Roanoke Rack is designed for heavier loading for fuel economy \u2014 fill it up and save on fuel costs.\nPowell alleged that Harrington\u2019s tobacco curing racks and barns do not have a greater capacity than Powell\u2019s, are not stronger than Powell\u2019s, do not save on fuel costs more than Powell\u2019s, and that Powell\u2019s are bolted, not welded, and have no self-tapping set screws. Powell alleged that Harrington\u2019s advertisements were misrepresentations of facts and were unfair and deceptive acts prohibited by G.S. 75-1.1. Powell alleged that its damages directly caused by these acts were as much as $13,500,000.00, and it prayed for treble damages under G.S. 75-16.\nWhat was said in connection with plaintiff\u2019s appeal is applicable to defendant\u2019s appeal from the order dismissing its first and third counterclaims. The statements in Harrington\u2019s advertisements as to which Powell complains did not, in our opinion, go so far beyond tolerable limits of puffing as to constitute unfair acts proscribed by G.S. 75-1.1. Harrington\u2019s advertisements, as was the case with Powell\u2019s which were the subject of Harrington\u2019s complaint, were directed to knowledgeable buyers who could not easily have been misled by exaggerated claims. We caution, however, that all advertisers would be well advised to exercise care not to step over the necessarily vague but nonetheless real boundary line dividing fair conduct from foul which the court from time to time may be called upon to draw. This is particularly true in view of the possibility that treble damages might be imposed under G.S. 75-16. We hold only that, under the circumstances of this case,' the advertisements which were the subject of defendant\u2019s first and third counterclaims, like those which were the subject of plaintiff\u2019s complaint, did not pass over that line. There was no error in the trial court\u2019s order dismissing defendant\u2019s first and third counterclaims.\nPowell\u2019s appeal from the order dismissing its second counterclaim presents a different question. In its second counterclaim (alleged as its \u201cFifth Defense and Counterclaim\u201d), Powell in substance alleged: that in the fall of 1974 Harrington advertised extensively in newspaper advertising and on television that its \u201cRoanoke Hydro-Synchronized Blade Assembly\u201d was a \u201cdramatic break-through;\u201d that a demonstration of the \u201cRoanoke Automatic Tobacco Harvester using the Hydro-Synchronized Blade Assembly\u201d was conducted by Harrington at or near Ahoskie, North Carolina, on 30 September and 1 and 2 October, 1974, and was witnessed by a considerable number of tobacco growers; that the blade assembly which was demonstrated harvesting tobacco in that demonstration was not a \u201cdramatic break-through\u201d as advertised by Harrington but on the contrary was Powell\u2019s \u201cCutterBar\u201d which Powell had started selling in 1962; that Harrington further wrongfully passed off Powell\u2019s \u201cCutterBar\u201d as Harrington\u2019s \u201cHydro-Synchronized Blade Assembly\u201d in newspaper advertising, leaflets, TV and at the Raleigh State Fair from 18 to 27 October 1974 and at a field demonstration at South Boston, Virginia, in the fall of 1974; that by wrongfully passing off Powell\u2019s \u201cCutterBar\u201d as Harrington\u2019s equipment, Harrington wrongfully misappropriated the very large investment which Powell had made in experimentation, engineering, and development to bring its \u201cCutterBar\u201d to a high level of quality and efficiency; that Harrington\u2019s acts constituted unfair methods of competition and unfair and deceptive acts or practices in the conduct of Harrington\u2019s trade or commerce prohibited by G.S. 75-1.1; that the damages directly caused Powell by Harrington\u2019s acts were as much as $14,500,000.00; and that Powell is entitled to recover treble damages under G.S. 75-16.\nNo precise definition of the term \u201cunfair methods of competition\u201d as used in G.S. 75-1.1 is possible. Perhaps it is not even desirable that there be one. This is so because the acts to which the term should properly be applied are ever changing in character as social and business conditions change. Speaking of the body of law term \u201cunfair competition,\u201d one authority has said:\nIt applies to misappropriation as well as misrepresentation; to the selling of another\u2019s goods as one\u2019s own, to misappropriation of what equitably belongs to a competitor; to acts which lie outside the ordinary course of business and are tainted by fraud, coercion, or conduct otherwise prohibited by law. Most courts continue to confine it to acts which result in the passing off of the goods of one man for those of another, but this limitation is not universally accepted.\n1 Nims, The Law of Unfair Competition and Trade-Marks (4th ed. 1947) \u00a7 1, p. 3.\nThe \u201cpassing off\u201d of one\u2019s goods as those of a competitor has long been regarded as unfair competition. Aycock, Antitrust and Unfair Trade Practice Law in North Carolina\u2014Federal Law Compared, 50 N.C.L. Rev. 199, at 248 (1972). In the present case Powell did not allege in its second counterclaim that Harrington attempted to pass off its own machine as Powell\u2019s. Quite the contrary, Powell charged that Harrington took Powell\u2019s product, the blade assembly which had been manufactured by Powell, and demonstrated this to potential customers of both companies as Harrington\u2019s product. Although the nature of the deception alleged in this case differs from that found in the usual case of \u201cpassing off,\u201d the underlying nature of the wrong is the same. Both cases involve the misappropriation of benefits which flow from the quality of a competitor\u2019s product.\nIt should be noted that Powell has not alleged that Harrington has wrongfully copied Powell\u2019s product. The allegation is that Harrington used Powell\u2019s actual product in demonstrations to potential customers, at the same time falsely representing to the potential customers that the product had been manufactured by Harrington. Although such conduct may not fit the mold to which the term \u201cpassing off\u201d has traditionally been applied, in our opinion it does constitute an unfair method of competition within the purview of G.S. 75-1.1.\nWe hold that Powell\u2019s second counterclaim, as alleged in its \u201cFifth Defense and Counterclaim,\u201d did state a claim upon which relief can be granted.\nThe result is:\nOn plaintiff\u2019s appeal the order granting defendant\u2019s motion for summary judgment is\nAffirmed.\nOn defendant\u2019s appeal, the order granting plaintiff\u2019s motion under Rule 12(b)(6) dismissing defendant\u2019s first and third counterclaims, alleged in defendant\u2019s \u201cFourth Defense and Counterclaim\u201d and in its \u201cSixth Defense and Counterclaim,\u201d is\nAffirmed.\nThe order dismissing defendant\u2019s second counterclaim, alleged in its \u201cFifth Defense and Counterclaim,\u201d is\nReversed.\nJudges VAUGHN and WEBB concur.", "type": "majority", "author": "PARKER, Judge." } ], "attorneys": [ "Pritchett, Cooke & Burch by Stephen R. Burch and William W. Pritchett, Jr., for plaintiff, Harrington Manufacturing Company, Inc., appellant-appellee.", "Grier, Parker, Poe, Thompson, Bernstein, Gage & Preston by Gaston H. Gage and William P. Farthing, Jr., for defendant Powell Manufacturing Company, Inc., appellant-appellee." ], "corrections": "", "head_matter": "HARRINGTON MANUFACTURING COMPANY, INC. v. POWELL MANUFACTURING COMPANY, INC.\nNo. 776SC602\n(Filed 7 November 1978)\n1. Unfair Competition \u00a7 1\u2014 unfair competition or trade practices \u2014application to disputes between competitors\nThe statute prohibiting unfair methods of competition and unfair or deceptive trade practices, former G.S. 75-1.1, does not apply only to dealings between buyers and sellers but applies to disputes between competitors.\n2. Unfair Competition \u00a7 1\u2014 advertisement not false or misleading \u2014 no unfair competition\nDefendant\u2019s reference in its advertisement of a tobacco combine to its \u201cexclusive CutterBar\u201d for priming tips did not constitute an unfair method of competition or unfair or deceptive act or practice within the meaning of former G.S. 75-1.1 where, at the time the advertisement appeared, defendant was the only company which held a license to manufacture and sell the patented \u201cCut-terBar,\u201d plaintiff only obtained a similar license some two months after this suit was filed, and the advertisement was, therefore, neither false nor misleading.\n3. Unfair Competition \u00a7 1\u2014 puffing in advertisement \u2014 no unfair competition or deceptive act\nA statement in defendant\u2019s advertisement that only defendant\u2019s tobacco combine primed lugs through tips, when, in fact, a combine manufactured by plaintiff also primed lugs through tips, did not go so far beyond tolerable limits of puffing as to constitute unfair competition or an unfair or deceptive act within the meaning of former G.S. 75-1.1 where the advertisement concerned a machine which cost in excess of $16,000, and it was directed to knowledgeable buyers who would not normally make such a large capital outlay by relying solely upon such an advertisement.\n4. Unfair Competition \u00a7 1\u2014 puffing in advertisement \u2014no unfair competition or deceptive act\nAllegedly false statements in plaintiff\u2019s advertisement that its tobacco primer was \u201cyears ahead of any other automatic tobacco harvester on the market,\u201d that its primer was a dramatic breakthrough in tobacco harvesting, and that its tobacco curing barns and racks had greater capacity, strength and fuel economy than those manufactured by defendant did not go so far beyond tolerable limits of puffing as to constitute unfair acts proscribed by former G.S. 75-1.1.\n5. Unfair Competition \u00a7 1\u2014 passing off competitor\u2019s goods as own product \u2014unfair method of competition\nDefendant\u2019s allegations that plaintiff incorporated into its automatic tobacco harvester a defoliator manufactured by defendant and demonstrated this defoliator to potential customers as a product manufactured by plaintiff stated a claim for relief under the statute prohibiting unfair methods of competition, former G.S. 75-1.1.\nAPPEALS by plaintiff and defendant from James, Judge. Judgment entered 11 May 1977 in the Superior Court, BERTIE County. Heard in the Court of Appeals 25 April 1978.\nDecisions on prior appeals in connection with this litigation are reported in 26 N.C. App. 414, 216 S.E. 2d 379 (1975), cert, denied, 288 N.C. 242, 217 S.E. 2d 679 (1975), and in 30 N.C. App. 97, 226 S.E. 2d 173 (1976), appeal dismissed, pet. for discretionary review allowed for limited purpose of granting leave to Powell to assert counterclaims, 290 N.C. 662, 228 S.E. 2d 454 (1976), appeal dismissed and cert, denied, 429 U.S. 1031, 50 L.Ed. 2d 743, 97 S.Ct. 722 (1977).\nPlaintiff, Harrington Manufacturing Company, Inc., and defendant, Powell Manufacturing Company, Inc. are competitors in the manufacture and sale of tobacco harvesting and curing equipment. On 12 September 1974 Harrington brought this action against Powell alleging that certain claims made in Powell\u2019s advertisements were false and fraudulent and that such advertisements constituted an unfair method of competition and a deceptive act declared unlawful by G.S. 75-1.1. Powell filed answer alleging as a defense that its advertising had been true. Powell also alleged as counterclaims: first, that' certain claims in Harrington\u2019s advertisements concerning its automatic tobacco primer were untrue, disparaged Powell\u2019s tobacco combine, and were unfair and deceptive acts declared illegal by G.S. 75-1.1; second, that Harrington had wrongfully passed off certain of Powell\u2019s tobacco harvesting equipment as its own; and third, that Harrington had falsely advertised its tobacco curing barns and racks as having greater capacity, strength, and fuel economy than Powell\u2019s.\nDefendant Powell\u2019s motion under Rule 12(b)(6) to dismiss Harrington\u2019s complaint for failure to state a claim upon which relief may be granted was denied. Powell then moved pursuant to Rule 56 for summary judgment dismissing plaintiff Harrington\u2019s action, supporting its motion by affidavits, answers to interrogatories, and depositions. Plaintiff Harrington moved pursuant to Rule 12(b)(6) to dismiss Powell\u2019s counterclaims for failure to state a claim upon which relief can be granted. The court allowed both motions, and both parties appealed.\nPritchett, Cooke & Burch by Stephen R. Burch and William W. Pritchett, Jr., for plaintiff, Harrington Manufacturing Company, Inc., appellant-appellee.\nGrier, Parker, Poe, Thompson, Bernstein, Gage & Preston by Gaston H. Gage and William P. Farthing, Jr., for defendant Powell Manufacturing Company, Inc., appellant-appellee." }, "file_name": "0393-01", "first_page_order": 421, "last_page_order": 433 }