United States: She Wore An Itsybitsy Teeny Weeny Fastkin® LZR Racer?? — Competitive Swimming Goes Hitech

From the itsy-bitsy polka dot bikini to boardshorts and back, the world of swimwear is constantly evolving. And, in the world of competitive swimming, where hundredths of a second often separate the winners from the losers, leading manufacturers of swimwear are increasingly turning to rocket scientists for their latest designs. With the help of NASA high-tech friction-testing facilities, the Speedo swimwear company developed the recently introduced LZR Racer, a full-body racing suit that the company claims is the "most revolutionary performance swimming suit ever made." Since February of this year, swimmers wearing the LZR Racer have broken more than 35 world records, leading to claims of "techno-doping." The harshest critics of the LZR Racer and similar racing suits have actually decried the records as meaningless. But, to at least one competitor of Speedo, its claims of superior performance of its swimwear are the bigger issue.

On May 12, 2008, TYR Sport, manufacturer of Tracer Light" swimwear, filed a complaint in the Central District of California against Warnaco Swimwear, Speedo's parent company, USA Swimming, and Mark Schubert, coach of the U.S. swim team, among others, alleging that the defendants had conspired to disperse false and misleading advertising material in an effort to sink the products of Speedo's competitors, including TYR, so that Speedo could raise prices and limit competition in relevant markets in violation of anti-trust laws. According to TYR, the relevant markets include swimwear, goggles, and swim caps sold to competitive, professional, collegiate, high school and club ranks swimmers in the U.S. TYR also alleges that Eric Vendt, a named defendant and Olympic Silver medalist swimmer, anticipatorily breached his TYR endorsement contract when his representative sent a letter to TYR stating that Vendt would wear a Speedo suit at the Grand Prix swimming competition. Finally, TYR asserts that Schubert abused his position as the U.S. swim coach by advocating that Speedo's products were superior to its competitors' products and "recommending" that swimmers breach their endorsement contracts. The complaint seeks damages and injunctive relief.

On the legal side of the ledger, TYR faces the difficult task of demonstrating both that Speedo's advertising and promotions included false and misleading statements and that such statements had the tendency to deceive and influence consumers' purchasing decisions. That this is an Olympics year makes this case all the more intriguing. Soon all eyes will turn to Beijing, and what suits the winning racers wear is likely to have a significant impact on future sales.

www.proskauer.com

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