CA1: equitable shares of the profits in a Lanham Act case

Venture Tape Corp. v. McGills Glass, No. 07-1186.  It’s tape v. glass.  Tape won in a trademark infringement suit, after both parties moved for summary judgment.  The underlying issue was “likelihood of confusion” (as you can see, I don’t really understand intellectual property).  The First reminds us that “Actual confusion” isn’t the substantive law, and the fact that Glass was trying to lure customers using Tape’s mark allows for summary judgment. 

There are some difficult issues.  Glass asked for a jury trial.  The court conducted a remedies hearing, which Glass participated in.  The First says they waived that.

The First goes through whether the infringement was “willful” or not.  Anyway, the First affirms an award of an equitable share of the Glass’s profits, noting that once Glass showed Tape’s sales, it fell on tape to show what wasn’t attributable to the infringement.

The First also affirms an award of attorneys fees because this is an “exceptional” case.  The First says that this isn’t an abuse of discretion.  The award of fees is about half the underlying amount of the profits, but because there are no personal injuries involved, none of the “tort reform” caravan will be whining.