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Fishman v. Paul

Fishman v. Paul

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Published by gesmer
1st Cir. trademark damages 2012
1st Cir. trademark damages 2012

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Published by: gesmer on Jul 07, 2012
Copyright:Attribution Non-commercial


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United States Court of Appeals
For the First Circuit
No. 11-1663FISHMAN TRANSDUCERS, INC.,Plaintiff, Appellant,v.STEPHEN PAUL, d/b/a Esteban; DAYSTAR PRODUCTIONS;HSN INTERACTIVE LLC,Defendants/Third-Party Plaintiffs-Appellees. __________FORCE USA, INC.; FORCE, LTD.,Third-Party Defendants.APPEAL FROM THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF MASSACHUSETTS[Hon. George A. O'Toole, Jr., U.S. District Judge]BeforeBoudin, Circuit Judge,Souter,
Associate Justice,and Thompson, Circuit Judge.Sibley P. Reppert with whom Michael J. Markoff and Pearl CohenZedek Latzer, LLP were on brief for appellant.Edward T. Colbert with whom T. Cy Walker, Susan A. Smith,William M. Merone, Erik C. Kane, Kenyon & Kenyon LLP, Michael B.Keating and Foley Hoag LLP were on brief for appellees.July 3, 2012
The Hon. David H. Souter, Associate Justice (Ret.) of theSupreme Court of the United States, sitting by designation.
BOUDIN, Circuit Judge.
This appeal concerns claims byFishman Transducers, Inc. ("Fishman"), primarily for trademarkinfringement and false advertising under the Lanham Act, 15 U.S.C.§ 1051 et seq. (2006), against HSN Interactive LLC ("HSN"),musician Stephen Paul and his company Daystar Productions. Fishmanfailed to get the relief it sought in the district court and nowappeals. We refer to the Lanham Act throughout by its Title 15section numbers rather than the sections in the original statute.Fishman is a developer and manufacturer of electronicequipment, specifically a highly-regarded line of acousticequipment that can be attached to individual musical instruments toprovide sound amplification. Fishman guitar "pickups" ofteninclude both a transducer and a preamplifier or equalizer, althoughthe term can also refer to only the transducer. The Fishmantransducer is a small device usually installed inside the guitarwhere it is not immediately visible.HSN is a retailer of various consumer goods and sellsproducts on its website; its sister company sells products on thetelevision channel Home Shopping Network; for purposes of this casethe two entities were treated as one. In late 2006, HSN soldthrough the website and television station about 70,000 "Esteban"guitars that it identified in the programming and website--inaccurately, it now concedes--as containing Fishman pickups. This
trademark violation is the centerpiece of the litigation that ledto this appeal.Esteban is the performance name used by musician StephenPaul who, with his company Daystar Productions, has collaboratedwith HSN since 2001 to market and sell Esteban guitar packages(usually a guitar equipped with a pickup as well as accessoriessuch as a strap, case, amplifier and instructional videos).Beginning in October 2006 on the HSN channel, Paul lauded Fishmanpickups, emphasized that the guitars included them and boasted thata Fishman pickup alone would sell for as much as the full HSNpackage. Beginning in the second quarter of 2006, the HSN websitesimply listed a Fishman pickup as a specification of the guitars.Several months after the television advertising began,Fishman contacted HSN and Daystar and demanded an end to claims inthe broadcasts and on the website that the guitars containedFishman pickups. HSN complied and ceased to make reference toFishman pickups in its sales pitches and on its website. Fishmanalso brought suit in the district court, stating claims againstHSN, Paul and Daystar under the Lanham Act for trademark violationand false advertising, the Massachusetts Consumer Protection Act,Mass. Gen. L. ch. 93A, and state common law trademark infringementand unfair competition.After extensive discovery and shortly before trial, thedistrict court dismissed Fishman's chapter 93A claim, denied its

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