It’s no secret that golfers like Costco’s new, relatively affordable golf balls, but the folks at Titleist — whose balls sell for several times what Costco charges — have informally accused the warehouse retailer of both patent infringement and false advertising.
So Costco, in an effort to forestall a lengthy patent lawsuit, have preemptively asked a federal court to rule that it is not infringing on Titleist’s patents, and that Costco’s advertising isn’t deceptive.
This is all according to a complaint [PDF] filed in federal court last week by Costco.
Following the 2016 launch of Costco’s Kirkland Signature golf balls, Titleist’s parent company, Acushnet Holdings, sent what is described in the complaint as a “threatening” letter. Acushnet alleged in this letter that Costco’s golf balls violated 11 different patents held by Achushnet, like this one for Golf Balls Comprising Highly-Neutralized Acid Polymers, this one for a Multi-Layer Golf Ball Having Velocity Gradient From Slower Center To Faster Cover, and this one for a specific Golf Ball Dimple Pattern.
The complaint briefly notes reasons for why it believes each of the patents fails to apply. For example, with regard to the dimple pattern allegation, Costco claims that its dimples cover less than 80% of the ball’s surface, which it contends is enough of a difference to negate the Titleist claim.
The Achushnet letter also took issue with Costco’s marketing language for Kirkland Signature products (not just golf balls). The company boasts about these store-brand items that they “meet or exceed the quality standards of leading national brands.”
Costco says that in the letter it received, Acushnet argued that this statement implies that Kirkland Signature balls (which sell for about $15/dozen) are at least as good as, if not better than, Titleist Pro V1 golf balls (which sell for more than $50/dozen).
However, Costco contends that shoppers are not going to make such a specific inference based on a general marketing slogan that encompasses everything from sporting goods to laundry detergent to booze.
“A reasonable consumer would not interpret the Kirkland Signature guarantee as intended to convey a statement of fact about any specific comparisons of quality between the KS ball and any specific manufacturer or ball, including Acushnet and its Pro V1 ball,” reads the complaint.
It also doesn’t matter if a consumer did make that leap, says Costco, which maintains that its balls are indeed just as good, if not better, than Titleist products:
“Many individual golfers and golf ball testers and experts have used and/or tested the KS ball and concluded that it is at least comparable to balls sold by other leading national brands, including Acushnet.”
Costco is asking the court to declare for the record that its balls are not infringing on the Acushnet patents, and that there’s nothing deceptive about the language of the Kirkland Signature quality guarantee.