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Intellectual Property Keyed to Merges
Lindy Pen Company, Inc. v. Big Pen Corporation
Facts
Lindy Pen Company, Inc. (Plaintiff) alleged that Big Pen Corporation (Defendant) infringed its trademark by using the word “Auditor’s” on its pen barrels. The district court entered judgment in favor of Defendant, and the circuit court upheld the ruling because Defendant did not infringe in the major retail markets, but remanded the case to determine whether there was a likelihood of confusion in telephone order sales. The district court determined that any confusion in the telephone order market could be cured upon receipt of the goods. The circuit court disagreed, however, and found that post-sale inspection could not cure the confusion. It ordered an accounting to award damages. On remand, the district court held that an accounting of profits was inappropriate because Bic’s (Defendant) infringement was innocent. Lindy (Plaintiff) appealed.
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