Milwaukee – January 26 -- Waukesha's Generac Power Systems Inc. has sued Kohler Co., alleging that Kohler is misrepresenting one of Generac's products in a marketing brochure.
The allegations - denied by Kohler - are the latest twist in a running dispute between the two Wisconsin-based generator manufacturers.
At issue in the new lawsuit, filed this week in federal court in Milwaukee, are what Generac describes as false statements by Kohler about Generac's 20-kilowatt generator. The machine is among those aimed at homeowners, a key business segment for Generac.
In its complaint, Generac alleges that the Kohler brochure describes its 20-kilowatt generator as providing features not included on the Generac counterpart, including a commercial-grade engine and corrosion-proof enclosure.
Generac argues that it does in fact offer those features. But what the Waukesha company alleges is particularly bothersome is that Kohler's brochure portrays Generac's equipment as not offering something called "low-speed diagnostic exercise."
A standby generator typically is "exercised" periodically - fired up and run for a while to make sure it will operate properly when needed. That, however, can produce a lot of noise and annoy neighbors.
In June 2007, Generac was awarded a patent on a noise-reducing method for exercising a stand-by generator. That innovation and others, Generac has said, have led to its capture of "70% of the residential standby generator market."
But Kohler has infringed on the patent, Generac alleges. In separate litigation filed in October 2010, Generac charged that Kohler has been selling generators that unfairly use Generac's patented method for reducing engine speed - and thus noise - during weekly exercise.
Kohler has fought back. Denying any infringement, it has charged that Generac's noise-reduction method is not truly novel and shouldn't have been granted a patent. Kohler asked the U.S. Patent and Trademark Office to re-examine Generac's application for a patent on the method. The federal agency is doing that now, and in the meantime U.S. District Judge Rudolph Randa has put Generac's infringement lawsuit on hold.
Given the patent litigation, however, Kohler was well aware that Generac's 20-kilowatt generator could be exercised at low speed, the Waukesha company said in its latest lawsuit. So Kohler's failure to indicate in its brochure that the Generac generator has the feature "is willful and malicious and done with a clear intent to deceive the public and damage Generac," the firm alleges.
In an email, Kohler spokeswoman Jennifer Taylor said that while the company does not discuss specific lawsuits, it "takes the obligation of accurately portraying our products through our advertising efforts seriously. Kohler Co. denies that our advertising is misleading in any way and looks forward to the opportunity to defend ourselves."
Meanwhile, Generac last month filed another infringement lawsuit, this one alleging that Kohler has trampled on a 2003 Generac patent on a method for monitoring and controlling multiple generators.
Kohler denies any infringement. Among its arguments, again, is that at least some of what Generac claims to have invented is not novel and not worthy of a patent. That lawsuit is pending.
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