James Florczak and Donald Oberriter both sell commemorative baseball bats up in Cooperstown, New York.
In Florczak v. Oberriter , Florczak alleged that Oberriter misled the public when the latter claimed to "manufacture" the bats in Cooperstown when, in fact, most were manufactured two miles outside of town.
After the Otsego County Supreme Court granted Oberriter's request to dismiss the case, Florczak appealed to the Appellate Division, Third Department.
Florczak couldn't show Oberriter's advertising was misleading and that it caused injury to consumers, since the ads clearly conveyed that Oberriter's retail store was located in Cooperstown and that the factory was located elsewhere. Florczak was also unable to prove that Oberriter's marketing caused damage or a financial loss -- such as a decrease in profits.
Further, the AD3 found that while Oberriter's bats began as pre-fabricated wooden billets made elsewhere by another entity, they took their form as commemorative bats only after Oberriter engaged in "coating, staining, engraving and placement of decals" -- activities which the appellate court viewed as an "essential part of the process."
That was three strikes, Florczak.
You're out!
To download a copy of the Appellate Division's decision, please use this link: Florczak v. Oberriter