Bell to appeal dismissal of Able Engineering suit

 - October 8, 2007, 10:08 AM

On September 16 Bell Helicopter Textron officially filed its intent to appeal the dismissal of a lawsuit the OEM had filed against Able Engineering and Component Services, a Phoenix component overhaul facility. The U.S. District Court Western District of Washington at Seattle dismissed the suit August 15.

It was in July last year that Bell Helicopter originally filed the lawsuit against Able, claiming that the component overhaul shop violated its trademark protection. The suit, announced to the press as part of an “anti-piracy” campaign, claimed that once Able had overhauled a Bell component (such as a transmission case), that component ceased to be a Bell product and could not carry the Bell logo or trademark.

Also in July last year, a similar lawsuit was filed against a Canadian-based component-overhaul facility, H.S. Tooling. According to Lee Benson, president of Able Engineering, that lawsuit was subsequently settled out of court.

In its dismissal of the suit against Able Engineering, the Washington court wrote, “[Bell’s] complaint states that defendants ‘alter genuine Bell Helicopter parts so as to be a different product from that of the original manufacturer’ and that the retention of Bell trademarks on those parts ‘is deceptive and misleading as to the origin of [the parts], and likely to cause confusion to subsequent or downstream purchasers, as well as to persons observing the products.’” The court rejected this argument.

Able, an FAA/JAA authorized repair station, argued that FAA regulations require retaining original marks and part numbers on overhauled components. At issue was whether or not Able’s work on Bell Helicopter components constituted “alterations” or “mere repairs.” The court wrote, “Defendants state that the Federal Aviation Administration reviews and approves every one of their procedures and has classified each one as a repair rather than an alteration [and that] plaintiff has failed to identify a single instance of actual confusion, and that there is no likelihood of confusion because they provide the customer with documentation that describes the work they perform on the parts.”

Glenn Presley, identified in the court paper as a Bell employee, “stated in his deposition that people who install parts on a helicopter review the 8130-3 tags and know who completed the repair. The court is unpersuaded that people who work in the aviation industry are unable to decipher these FAA-mandated forms.”

Further, the court added as a factor to consider, “whether a market has developed for service and spare parts, and whether end users of the product are likely to be misled as to the party responsible for the composition of the part.”

Supporting the OEM’s assertions, a Bell witness, Craig Willan, described in court documents as “a registered professional engineer,” testified that Able’s practice of chrome- or nickel-plating the rotor support pylon to restore its thickness is unsafe. He said that Bell uses only cadmium brush plating on its spindle-restoration process and chrome- or nickel-plating does not adequately restore the load- or stress- carrying capability of the spindle. The court quoted Willan’s testimony that Able’s process “not only significantly alters the design of the Bell part, it is extremely unsafe.” Able countered that FAA Repair Guideline 6.75; Bell 206B3 CR&O manual at 53; Bell 212 CR&O Manual at 216 authorizes nickel plating.

On August 15 the court found in favor of Able, granting its motion for summary judgment, though it denied Able’s counterclaim asserting antitrust intent on the part of Bell in filing the suit in the first place. Able Engineering characterized the ruling this way: “The real winner in [the] ruling is the end user. The repairs Able performs provide operators and overhaul facilities an alternative to buying new. FAA-approved component repair solutions routinely save operators thousands of dollars during overhauls by extending the life of otherwise unserviceable components.”

Early last month, a spokesman for Bell told AIN his company would not comment on the ruling other than to say it was “disappointed” and planned to appeal. Late last month Benson said it could be several months before Bell’s brief to the court on the appeal is due. After that, he said, Able would file a reply brief in opposition and so on. “The whole process could take years,” he said, having described the litigation process to this point as “costly.”

Asked his impression of what Bell’s motivation might be, Benson said, “In my opinion–and I stress this is only my opinion–Bell simply wants to sell more [new] parts. If someone wanted to invest a million dollars here and there [in legal costs] to go up against a company that’s competing, this would be the way to do it.”