January ___, 2002
VIA CERTIFIED MAIL
RETURN RECEIPT REQUESTED
William J. Converse
President & CEO
310 T. Elmer Cox Drive
Greeneville, TN 37743
310 T. Elmer Cox Drive
Greeneville, TN 37743
Re: False, Misleading and Deceptive Claims Regarding AWEA’s Purported Endorsement of WindTree Energy Generator
Dear Messrs. Converse and Jackson:
This firm represents the American Wind Energy Association (AWEA). It has come to our attention that Alpine Industries (Alpine) and EcoQuest International (EcoQuest) are making false and deceptive claims that are or may be misleading consumers into concluding that AWEA endorses your companies’ WindTree product. We request that you immediately cease and desist from continuing to make any such claims. We further request that you immediately remove such claims from all your advertisements, including Web site pages.
AWEA is a national trade association based in Washington, D.C. Since 1974, AWEA has represented wind power plant developers, wind turbine manufacturers, utilities, consultants, insurers, financiers, researchers, and others involved in the wind energy industry. AWEA is widely recognized as the best source for wind energy information, and has a well-deserved reputation for providing up-to-date, accurate and unbiased facts, statistics and other information about the domestic and international wind energy industry. This reputation has been harmed, and will continue to be harmed, by any and all false and deceptive claims that AWEA supports or endorses a particular product and service.
As you know, advertising and promotional materials disseminated by Alpine and EcoQuest concerning WindTree have explicitly used AWEA’s name and written materials in an attempt to portray AWEA as having endorsed WindTree as a legitimate and effective wind energy product. As you also know, such endorsement-related claims are blatantly false, deceptive and misleading, given that AWEA does not and never has endorsed WindTree for any purpose whatsoever and has never given permission to any individual or entity to use the AWEA name in connection with WindTree.
Examples abound of your companies’ attempt to lend credibility to WindTree through the use of false and deceptive claims regarding AWEA. For instance, EcoQuest’s Web site at 101windpowerenergyresources.com provides an active link to a “28 minute National call.” At about 15 minutes into the audio clip, the speaker claims to be referring to and quoting from an article supposedly written by AWEA entitled, “Pulling Energy From Thin Air – What Is WindTree.” However, no one at AWEA has written any such article. The speaker then purports to quote from the article as follows:
Now let me tell you what the Wind Energy Association said about WindTree. They caught wind of this new product of ours, the WindTree, and I’m going to quote to you what they said about our product there, uh, uhm reporters went out and did their homework and I’m going to quote the name of their article that they put out in their newspaper was, uh, in their magazine was Pulling Energy From Thin Air – What Is Wind Tree is what they called it. “Sounds like a pipe dream? Free, pollution free energy renewable and abundant with Alpine Technologies new WindTree Rooftop Energy System it may soon be a reality . . . harnesses the power of a very small to large amounts of wind . . . but needless to say,” they said now, “needless to say, this is a multi-billion dollar opportunity.” Now this is the wind, American Wind Energy Association said that.
The foregoing quote is a complete fabrication and utterly false. No one at AWEA has ever made any such statement, and no such statement appears in any AWEA publication or other document. As another example, further into the same EcoQuest Web site, at 101windpowerenergyresources.com/californiaenergypowerrates, an active link to an AWEA press release is juxtaposed to a claim regarding WindTree as follows:
Sales of the WindTree residential wind system will absolutely explode in California as homeowners seek alternatives to utility power. See the Feb. 13 Press Release from the American Wind Energy Association, click here.
The linked AWEA press release, however, contains no reference to WindTree, nor for that matter any product or service offered by EcoQuest or Alpine.
In addition, EcoQuest has been disseminating emails to the public concerning WindTree. In one such email, an active link to AWEA’s Web site is placed directly adjacent to the words “Pulling Energy From Thin Air,” the bogus WindTree article discussed above. Of course, embedding links to AWEA’s Web site into emails discussing WindTree deliberately misleads consumers into believing that AWEA supports or endorses that product.
As yet another example, EcoQuest has been emailing Windletter, AWEA’s monthly newsletter, in response to inquiries about WindTree. As you are fully aware, AWEA’s newsletters contain no references to or articles about WindTree. It is clear that EcoQuest disseminates this newsletter as part of an intentional strategy to create the false impression that WindTree is affiliated with AWEA and that AWEA endorses WindTree.
The unauthorized use of AWEA’s name and materials to state or imply that AWEA endorses, supports, recommends or otherwise takes any position with respect to the legitimacy, quality, efficacy or any other aspect of WindTree is patently false, misleading and deceptive. Such unauthorized use and claims are clearly in violation of federal and state false advertising, unfair competition and unfair trade practices law. In particular, Section 43 of the Federal Lanham Act, 15 U.S.C. § 1125, establishes civil liability against any person who makes any false or misleading statement that “is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person.”
In addition, Section 5 of the Federal Trade Commission Act, 15 U.S.C. § 45, declares unlawful and prohibits any “unfair or deceptive acts or practices in or affecting commerce,” and empowers the FTC to take appropriate action against such acts. You are also in violation of the FTC’s “Guide Concerning Use of Endorsements and Testimonials in Advertising,” which prohibits the making of false claims regarding third-party endorsements of a product or service.
Not only is your use of AWEA’s newsletter and other materials in violation of federal and state false advertising, unfair competition and unfair trade practices law, it also clearly constitutes copyright infringement. AWEA is the exclusive owner of the copyright in and to Windletter as well as all materials contained therein and all AWEA materials posted on its Web site. Therefore, no portion of AWEA’s newsletters or Web site content materials may be reproduced, in whole or in part, for commercial purposes, including but not limited to promoting any third-party product or service, without AWEA’s prior written consent.
Further, AWEA distributes its newsletter solely to its dues-paying members. Neither EcoQuest nor Alpine is an AWEA member, and thus your possession or use of AWEA’s newsletter, whether in electronic or paper form, is unauthorized and illegal.
In light of the foregoing, we request that you immediately cease and desist from continuing to make any false, deceptive or misleading claims, statements, assertions or representations — whether explicit or implicit — regarding AWEA or regarding AWEA’s purported endorsement, recommendation, support or approval of WindTree or any other product or service. We further request that you immediately remove all such claims from all your promotional materials, whether in written, electronic, verbal, visual or audio form, including, but not limited to, advertisements, emails, Web site materials, press releases, announcements and correspondence.
If you fail to take this requested action within 5 business days, AWEA will have no choice but to pursue all available legal remedies against you, EcoQuest and Alpine.
Eli D. Eilbott
cc: Elena Paoli, Esq., FTC Bureau of Consumer Protection
Elizabeth Stein, Esq., U.S. Department of Justice
_____, Tennessee Attorney General’s Office
_____, Tennessee Better Business Bureau
_____, U.S. Department of Energy