MERIT PUBLICATIONS, INC., A FLORIDA CORPORATION, APPELLANT,
v.
COMPACT PUBLICATIONS, INC., ET AL., APPELLEES
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The court reversed summary judgment for the defendant in a trademark/trade dress case, holding that genuine issues of material fact regarding likelihood of confusion and palming off preclude summary disposition.
Summary judgment is improper in a trademark or trade dress case when genuine and material issues of fact exist regarding whether the defendant sought to palm off its products as the plaintiff's and whether customer confusion is likely.
[1] Summary judgment is improper in trademark or trade dress infringement cases when material factual disputes exist regarding intent to palm off goods and likelihood of cust…
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Join FLexlaw to unlock all legal intelligenceMerit Publications sued Compact Publications regarding the marketing and presentation of books, with Compact obtaining partial summary judgment in its…
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PER CURIAM.
The partial summary judgment entered in favor of the defendant Compact Publications, Inc., is reversed. Genuine and material issues of fact exist precluding the entry of summary judgment, Wills v. Sears, Roebuck & Company, 351 So. 2d 29 (Fla.1977), including (a) whether the defendant sought to “palm off” its books as plaintiff’s; and (b) the likelihood of customer confusion between the two. See B.
H. Bunn Co. v. AAA Replacement Parts Co., 451 F. 2d 1254 (5th Cir. 1971); Harlequin Enterprises Ltd. v. Gulf & Western Corp., 503 F.Supp. 647 (S.D.N.Y.1980), aff’d, 644 F. 2d 946 (2d Cir. 1981); Teledyne Industries, Inc. v. Windmere Products, Inc., 433 F.Supp. 710, 736 (S.D.Fla.1977); Weiner v. Weisberg, 342 So. 2d 535 (Fla. 3d DCA 1977); Luckie v. McCall Mfg. Co., 153 So. 2d 311 (Fla. 1st DCA), cert. denied, 157 So. 2d 817 (Fla.1963).
See generally Sears, Roebuck & Co. v. Stiffel Co., 376 U.S. 225, 232, 84 S.Ct. 784, 789, 11 L.Ed.2d 661, 667 (1964) (state action aimed at protecting businesses in the use of trade dress not pre-empted by federal law); Sentco, Inc. v. McCulloh, 68 So. 2d 577 (Fla.1953); American Pest Corps., Inc. v. Barco Chemicals Division, Inc., 317 So. 2d 789 (Fla. 4th DCA 1975); Crown Central Petroleum Corp. v. Standard Oil Co., 135 So. 2d 26 (Fla. 1st DCA 1961), cert. denied, 142 So. 2d 731 (Fla.1962).
Reversed and remanded for further proceedings.
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Authorities Cited (11 total)
- Sears v. Stiffel Co., 376 U.S. 225 (U.S. 1964)
- Wills v. Sears, 351 So. 2d 29 (Fla. 1977)
- B. H. Bunn Co., Inc. v. AAA Replacement Parts Co., Inc., 451 F.2d 1254 (5th Cir. 1971)
- Harlequin Enters. Ltd. v. Gulf & W. Corp., 644 F.2d 946 (2d Cir. 1981)
- Willis H. Luckie and his wife v. McCALL MFG. Co., Inc., 153 So. 2d 311 (Fla. 1st DCA 1963)
- Sentco, Inc. v. McCULLOH, 68 So. 2d 577 (Fla. 1953)
- Herrick v. Gross, 157 So. 2d 817 (Fla. 1963)
- Crown Cent. Petroleum Corp. v. Standard OIL Co., 135 So. 2d 26 (Fla. 1st DCA 1961)
- Crown Cent. Petroleum Corp. v. Standard OIL Co., 142 So. 2d 731 (Fla. 1962)
- Am. Pest Corps., Inc. v. Barco Chems. Div., Inc., 317 So. 2d 789 (Fla. 4th DCA 1975)