George Basch Co., Inc. v. Blue Coral, Inc

968 F.2d 1532 (2nd Cir. 1992)

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Nature of the Case

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Facts

P manufactures and distributes NEVR-DULL, a cotton wadding metal polish. D manufactures and distributes a line of automotive wheel cleaning and polishing products. D markets these products under the trademark ESPREE. D approached P with respect to becoming P's exclusive NEVR-DULL distributor in Canada. D became NEVR-DULL's exclusive Canadian distributor. NEVR-DULL was not sold under the ESPREE mark, and its Canadian trade dress remained substantially the same as the United States' version, with the exception that the French language was employed on the front of the can. D asked P to produce a wadding metal polish for D to market in the United States. D intended to add the polish to its line of ESPREE products. D ultimately contracted with another manufacturer of metal polish. D introduced EVER BRITE--the new ESPREE wadding metal polish--into the United States market. EVER BRITE was packaged in the same size cylindrical metal can used by NEVR-DULL. The base color of the EVER BRITE can was black. P terminated D's Canadian distributorship. D introduced EVER BRITE into the Canadian market. D's Canadian trade dress was also substantially the same as its United States version--merely substituting French print in some places on the can where English had been used, and placing a hyphen between EVER and BRITE where none had been before. P sued D alleging trade dress infringement in violation of § 43(a) of the Lanham Act. D moved for summary judgment on all claims. The district court denied summary judgment on P's federal claims. The district court concluded, that P could recover Ds profits if it succeeded on its trade dress infringement claim. The case was submitted to the jury which exonerated D on the tortious interference count but found against it on Ps trade dress infringement claim. Accordingly, it awarded P $200,000. D moved for judgment n.o.v. It was denied and D appealed.