Full opinion text
OPINION AND ORDER THERESA L. SPRINGMANN, District Judge. The Plaintiff, Dwyer Instruments, Inc. (Dwyer), has sued the Defendants, Sensocon, Inc. (Sensocon), and its owner and operator, Tony Kohl (Kohl) (collectively the Defendants), for trademark infringement, trade dress infringement, counterfeiting, unfair competition, false designation of origin, and copyright infringement. This lawsuit centers around the manufacture, marketing, and sale of differential pressure gauges. The Plaintiff is a long time manufacturer of these products. The Defendants are newcomers to the market — Kohl left his employment with the Plaintiff and started Sensocon. The Plaintiff alleges that the Defendants’ business has been fraught with violations of the Plaintiffs intellectual property rights. The Defendants have moved for partial summary judgment [ECF No. 103]. Kohl moves for summary judgment on all counts of the Plaintiffs First Amended Complaint on grounds that he is not personally liable for Sensocon’s actions because it is a separate legal entity and he is not Sensocon’s alter ego. Sensocon argues that the Plaintiffs claims are either subject to limited damages or should be dismissed in their entirety as a matter of law. The Court previously denied the portion of the Defendants’ Motion that requested summary judgment on Count I of the First Amended Complaint, which asserts a claim for trademark infringement on United States Trademark Registration No. 3,397,050 for the lens design, specifically for a plurality of horizontal lines and raised rectangular portion on the lens face of a differential pressure gauge. Instead, the Court granted in part the Plaintiffs Motion for Partial Summary Judgment on this same count, finding that the Plaintiff had established the Defendants’ violation of its registered trademark as a matter of law. This Opinion and Order addresses the remainder of the Defendants’ Motion for Partial Summary Judgment. The counts under review, either in whole or in part, are: Count II — Federal Trademark Infringement (15 U.S.C. § 1114) for the Plaintiff’s Magnehelie® Mark Count III — Federal Trademark Infringement (15 U.S.C. § 1114) for the Dwyer® Mark Count TV — Federal Unfair Competition/False Designation of Origin (15 U.S.C. § 1125) for the Magnehelie® Mark, the Dwyer® Mark, and the lens design. Count V — Common Law Trademark Infringement/False Designation of Origin for “Series 2000” Count VI — Common Law Unfair Competition Count VII — Trade Dress Infringement (15 U.S.C. § 1125(a)) for the lens design Count VIII-Copyright Infringement (17 U.S.C. § 501) Count IX — Counterfeiting (15 U.S.C. § 1114) SUMMARY JUDGMENT STANDARD Summary judgment is appropriate if the facts supported by materials in the record show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56. “Summary judgment is only appropriate if the evidence submitted below reveals no genuine issue as to any material fact and the moving party (the defendant) is entitled to judgment as a matter of law.” Goodman v. Nat’l Sec. Agency, Inc. 621 F.3d 651, 654 (7th Cir.2010) (citing Poer v. Astrue, 606 F.3d 433, 439 (7th Cir.2010)). The court construes all facts and reasonable inferences in favor of the nonmoving party, and takes care not to weigh any conflicting evidence. Omnicare, Inc. v. UnitedHealth Grp., Inc., 629 F.3d 697, 705 (7th Cir.2011). A court’s role is not to evaluate the weight of the evidence, to judge the credibility of witnesses, or to determine the truth of the matter, but instead to determine whether there is a genuine issue of triable fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Doe v. R.R. Donnelley & Sons Co., 42 F.3d 439, 443 (7th Cir.1994). STATEMENT OF FACTS The Plaintiff is a leading manufacturer in the instrumentation and controls industry. The Dwyer name is a registered trademark, as are the. names of specific products the Plaintiff sells. Among the products the Plaintiff sells are gauges that measure the differential pressure of air and compatible gases. The Plaintiff sells these gauges to original equipment manufacturers and end users, including those in industries that involve heating, ventilation and air conditioning, pollution control, chemicals, food, and oil and gas. Since 1962, the Plaintiff has been using a lens design on its gauges that incorporates a generally rounded side wall forming a generally domed face with an ornamental design on the lower portion of the lens face that consists of a plurality of horizontal lines and a raised rectangular portion. One of the Plaintiffs most successful and popular product lines, the Series 2000 Magnehelic® brand pressure gauges, has featured .this lens design since at least 1963. The Plaintiff uses the same lens on other products it manufactures. On November 8, 2006, the Plaintiff filed an application with the United States Patent and Trademark Office (USPTO) to register the lens design that it used on pressure gauges and differential pressure gauges. On March 18, 2008, the USPTO issued United States Registration No. 3,397,050.to the Plaintiff under § 1052(f) for the mark (Lens Mark) in connection with pressure gauges and differential pressure gauges. The Lens Mark “consists of a plurality of horizontal lines and a raised rectangular portion on the lens of a pressure gauge.” (Trademark, EOF No. OS-JO By May 2008, the Plaintiff was .using the ® symbol in connection with the products bearing the Lens Mark. In 1997, Kohl began working for the Plaintiff, ultimately reaching the level of District Sales Manager. In his employment for the Plaintiff, Kohl promoted the sale of the Plaintiffs Magnehelic® brand pressure gauges. On July 20, 2005, Kohl resigned from the Plaintiffs employment, and within three, weeks incorporated Sensocon. The following year, Kohl contacted a Chinese-based company seeking information on a product “that was identical to the Dwyer Magnehelic that was made by a company called Best Control Technology (in Beijing).” (Email correspondence, ECF No. 102 at 17.) Kohl indicated that he was interested in selling the product in North America. By summer 2006, a different Chinese company, Sailsors, was manufacturing differential pressure gauges for Sensocon. The lens had the same plurality of horizontal lines and a raised rectangular portion that Dwyer uses on its gauges. The face of the gauge, however, included the word SENSOCON, instead of Magnehelic®. In fall 2006, Kohl contacted current customers of the Plaintiff to inform them that Sensocon had an alternative to the pressure gauges they were currently using, specifically a Sensocon model S2000 differential pressure gauge. Sensocon also promoted its products through a website. In late 2006, the Plaintiff became aware that Sensocon was marketing competitive pressure gauges that the Plaintiff believed incorporated its trademarks without authorization. On January 8, 2007, the Plaintiff sent the Defendants a letter with respect to Sensocon’s use of the Plaintiffs Magnehelic® and Dwyer® registered trademarks and Series 2000 common law trademark in marketing and promotional materials. The letter also advised that the Plaintiff was the owner of trademark rights in the trade dress of its Magnehelic® pressure gauges as generally shown in an attached drawing, which showed a gauge with a plurality of horizontal lines covering the bottom portion of the lens and a raised rectangular portion. The letter alleged that the Sensocon S2000 differential pressure gauge incorporated the trade dress of the Plaintiffs Magnehelic® pressure gauge, violated- the Plaintiffs trademark rights, and was likely to cause confusion, mistake, and deception of the purchasing public. The Plaintiff requested a written assurance by January 22, 2007, that the Defendants would cease and desist from the identified activities and voluntarily discontinue use of the Plaintiffs marks and trade dress so that future legal action would not be necessary. (Jan. 8, 2007, Letter, ECF No. 104-2 at 23-24.) The Defendants continued to advertise, promote, and sell the S2000 Sensocon gauge throughout 2008 and 2009. On January 7, 2009, the Plaintiff filed this lawsuit against the Defendants for trademark infringement, trade dress infringement, unfair competition, false designation of origin, and copyright infringement.. The Plaintiff later added a claim for counterfeiting. In 2010, Sensocon began selling gauges with a lens design that did not contain a plurality of horizontal lines and raised rectangular portion (the Third Generation Lens). The Defendants maintain that after December 31, 2009, Sensocon no longer sold the S2000 gauge, but instead only sold gauges with the Third Generation Lens. In addition to Sensocon, Kohl has set up another company by the name of TEK Instrument Company (TEK Instrument). TEK Instrument sells gauges that are manufactured by Sensocon. On it website, TEK Instrument advertises and sells the Sensocon Series S2000 differential pressure gauge as the “Series S2000 Differential Pressure Gauge — Magnehelic® Alternative.” (TEK Instrument Company web page, ECF No. 108-31). The Court will provide additional facts throughout the Analysis as they become necessary to resolve the pending Motion. ANALYSIS A. Tony Kohl’s Personal Liability In an Opinion and Order issued on March 23, 2012, the Court determined that the Plaintiff had not offered evidence in support of its claim that Kohl was the alter ego of Sensocon. The Plaintiff had presented no evidence that Sensocon was undercapitalized, did not have corporate records, or ignored corporate formalities. The Plaintiff did not cite any evidence to suggest that Kohl commingled his assets and affairs with Sensocon’s, used the corporate form to promote fraud, or payed his individual expenses with corporate funds. That holding remains valid for the remaining claims against Kohl, and he cannot be held liable as the alter ego of Sensocon. However, in that same Opinion and Order, the Court found in favor of the Plaintiff on its alternative theory of liability against Kohl — that he was personally liable for trademark infringement because he participated directly in the activities related to the original Sensocon gauge that constituted infringement of the Plaintiffs intellectual property rights in the Lens Mark. In making this finding, the Court rejected Kohl’s argument that the Plaintiff could not proceed under the direct liability theory because Count I of the First Amended Complaint only asserted liability on alter ego grounds. (March 23, 2012, Op. & Order 33-39, EFC No. 125.) As he did for Count I, Kohl argues that the Plaintiff cannot proceed under the direct liability theory for Counts II, III, IV, VII, and IX of the First Amended Complaint because the Plaintiff only alleged liability under the alter ego theory. For Counts V and VI, which are based on common law, Kohl asserts that Indiana does not recognize claims for personal liability. Finally, regarding Count VIII, Kohl contends that there is no evidence that he personally participated in wrongdoing with respect to the Sensocon Installation and Operation Manual, which is the document that the Plaintiff alleges constitutes copyright infringement. 1. Counts II, III, TV, VI, and IX The Court disagrees with Kohl’s assertion that the First Amended Complaint does not allege that he was a direct participant in infringing conduct. Paragraph 14 of the First Amended Complaint alleges that Sensocon “through the direction of Kohl” has been selling infringing pressure gauges, and in paragraph 15 alleges that Sensocon, “by direction of Kohl is transacting business and has committed illegal acts hereinafter complained of.” (First Am. Compl., ECF No. 52.) In paragraphs 21, 24, and 25, the Plaintiff alleges that both Sensocon and Kohl are distributing and selling pressure gauges, using trademarks in connection with gauges that include a lettering scheme identical to or confusingly similar to the Plaintiffs trademarks, and using a lens identical with, or substantially indistinguishable from and confusingly similar to, the Plaintiffs trademarks. (Id.) All of these allegations are then repeated and realleged for each count. Additionally, under the heading for Count II, the Plaintiff alleges that “SENSOCON and KOHL use or have used the identical mark or a confusingly similar mark in connection with the sale of SENSOCON pressure gauges.” (Id. ¶ 52.) Then, in paragraph 53, the Plaintiff alleges that Sensocon and Kohl “as its owner, president, director and alter ego, have willfully and deliberately infringed.” (Id. (emphasis added).) The same general pattern of allegations is repeated with respect to Count III of the First Amended Complaint. (Id. ¶¶ 63, 64.) Counts TV includes numerous statements with respect to Sensocon and Kohl, with only one paragraph referring to Kohl as the alter ego of Sensocon. Count IX includes many references to Sensocon’s and Kohl’s actions without reference to alter ego. Only Count VII’s references to Kohl are framed solely in terms of him being the alter ego of Sensocon. Nevertheless, the allegations of the First Amended Complaint, when read in their entirety, do not suggest that the Plaintiff was asserting alter ego as the only mechanism by which Kohl was responsible for infringing acts. Kohl is not entitled to summary judgment on his asserted ground that the First Amended Complaint, specifically Counts II, III, IV, VII, and IX, alleges no claims against him personally. Kohl has not attempted, for these Counts, to show that a reasonable jury could not conclude that Kohl exceeded his corporate officer duties and, as the sole founder, shareholder, and employee of Sensocon, personally participated in the manufacture and sale of the infringing product and directed advertising related to the product. Long ago, the Seventh Circuit adopted a standard for holding a corporate officer liable for direct infringement: [I]n the absence of some special showing, the managing officers of a corporation are not liable for the infringements of such corporation, though committed under their general direction .... It is when the officer acts willfully and knowingly — that is, when he personally participates in the manufacture or sale of the infringing article (acts other than as an officer), or when he uses the corporation as an instrument to carry out his own willful and deliberate infringements, or when he knowingly uses an irresponsible corporation with the purpose of avoiding personal liability — that officers are held jointly with the company. Dangler v. Imperial Mach. Co., 11 F.2d 945, 947 (7th Cir.1926); see also Grice Eng’g, Inc. v. JG Innovations, Inc., 691 F.Supp.2d 915, 925 (W.D.Wis.2010) (citing Dangler as “still the law of the Seventh Circuit for direct patent and trademark infringement claims”); Syscon, Inc. v. Vehicle Valuation Sews., Inc., 274 F.Supp.2d 975, 976 (N.D.Ill.2003) (noting that “Dangler remains the law of this Circuit”) (citing Kohler Co. v. Kohler Int’l, Ltd., 196 F.Supp.2d 690, 694 (N.D.Ill.2002); Drink Group, Inc. v. Gulfstream Commc’ns, Inc., 7 F.Supp.2d 1009, 1010 (N.D.Ill.1998)). It will be for a jury to determine whether this standard has been satisfied and whether Kohl is personally liable for any violations as set forth in Counts II, III, IV, VII, and IX. 2. Counts V and VII — Common Law Trademark Infringement and Unfair Competition Kohl asserts that he cannot be held personally liable under the Indiana common law claims for trademark infringement and unfair competition because Indiana does not recognize such liability for officers of corporations. A review of Indiana law reveals otherwise. Unfair competition and trademark infringement are common law torts. Keaton & Keaton v. Keaton, 842 N.E.2d 816, 819 (Ind.2006); Felsher v. Univ. of Evansville, 755 N.E.2d 589, 598 (Ind.2001). The Indiana Supreme Court has stated: It is true that an officer of a corporation is generally not personally liable for the torts of the corporation or other officers or agents merely because of her office. However, an officer is personally liable for the torts in which she has participated or which she has authorized or directed. State Civil Rights Comm’n v. Cnty. Line Park. Inc., 738 N.E.2d 1044, 1050 (Ind.2000) (citations omitted) (reversing dismissal of claims alleging that individual defendants participated in illegal discrimination); see also McDonald v. Smart Prof. Photo Copy Corp., 664 N.E.2d 761, 764 (Ind.Ct.App.1996) (“An agent who fraudulently represents, uses duress, or knowingly assists in the commission of fraud or duress by his principal is subject to liability in tort to any injured third party.”); Am. Indep. Mgmt. Sys., Inc. v. McDaniel, 443 N.E.2d 98, 103 (Ind.Ct.App.1982) (holding that the president of a corporation could not escape liability for fraud “by claiming that he acted on behalf of the corporation because an agent is liable for his own torts”). The principal of liability of a corporate officer for torts is not limited, as the Defendants suggest, to cases involving fraud. See DFS Secured Healthcare Receivables Trust v. Caregivers Great Lakes, Inc., 384 F.3d 338, 346-47 (7th Cir.2004) (stating that the well-established principle of Indiana law set forth in County Line Park “has been applied not just in common law fraud actions, but in other statutory and common law causes”); Stillwater of Crown Point Homeowner’s Ass’n, Inc. v. Kovich, 820 F.Supp.2d 859, 893 (N.D.Ind.2011) (holding that, under the principle recognized in County Line Park, the defendant could not, simply because he was a corporate officer, escape liability for the state law tort claims for negligence per se related to the Indiana Flood Control Act, breach of the restrictive covenants, breach of the implied warranty of habitability, negligence, and nuisance). The Plaintiffs claims against Kohl are not merely due to his position as a shareholder or an officer within the larger corporate organization. The Plaintiff has presented evidence from which a reasonable jury could conclude that Kohl participated in, authorized, or directed acts that constitute the torts at issue, and Kohl is not entitled to judgment as a matter of law on the grounds raised in his Motion for Partial Summary Judgment. 3. Count VIII — Copyright Infringement With respect to the Plaintiffs claim that Kohl infringed its copyright Infringement, Kohl sets forth a separate argument in support of summary judgment. He argues that the Plaintiff has not made the special showing required under Dangler that Kohl personally participated in drafting the installation instructions (Bulletin 103) posted on Sensocon’s website. Although Kohl does not dispute that he was Sensocon’s founder and sole shareholder and employee, he argues that the Rule 30(b)(6) deposition of Sensocon establishes that the third party manufacturer, Sailsors, “wrote the manual at issue, and it was [Kohlj’s understanding that the third party manufacturer did not copy Dwyer’s manual.” (Defs.’ Reply 5, ECF No. 118 (citing Sensocon Dep. 68, ECF No. 110-3).) Kohl’s reliance on Dangler does not acknowledge the specific case law that has developed for copyright cases. The Supreme Court has held that, while “[t]he Copyright Act does not expressly render anyone liable for infringement committed by another ... [t]he absence of such express language in the copyright statute does not preclude the imposition of liability for copyright infringements on certain parties who have not themselves engaged in the infringing activity.” Sony Corp. of Am. v. Universal City Studios, 464 U.S. 417, 434-35, 104 S.Ct. 774, 78 L.Ed.2d 574 (1984) (stating that “vicarious liability is imposed in virtually all areas of the law, and the concept of contributory infringement is merely a species of the broader problem of identifying the circumstances in which it is just to hold one individual liable for the actions of another”). “Vicarious liability exists when two elements are present. First, the defendant must possess the right and ability to supervise the infringing conduct. Second that defendant must have ‘an obvious and direct financial interest in the exploitation of copyrighted materials.’ ” 3 Nimmer on Copyright § 12.04[A][2] (quoting Shapiro, Bernstein & Co. v. H.L. Green, Co., 316 F.2d 304, 307 (2d Cir.1963)). A form of contributory infringement occurs when a “party ‘who, with knowledge of the infringing activity, induces, causes, or materially contributes to the infringing conduct of another.’ ” Id. § 12.04[A][3][a ] (quoting Gershwin Publ’g Corp. v. Columbia Artists Mgmt., Inc., 443 F.2d 1159, 1162 (2d Cir.1971)). At least one district court in the Seventh Circuit has acknowledged this, stating that contributory liability is possible where a party “directly participates in the infringing activity or ‘induces, causes, or materially contributes to the infringing conduct of another.’ ” Microsoft Corp. v. Ram Distrib., LLC, 625 F.Supp.2d 674, 682 (E.D.Wis.2008) (quoting Burdick v. Koerner, 988 F.Supp. 1206, 1209 (E.D.Wis.1998) (quoting Grupke v. Linda Lori Sportswear, Inc., 921 F.Supp. 987, 998 (E.D.N.Y.1996))). Although Kohl testified during Sensocon’s Deposition that he did not understand Sailsors to have copied Dwyer’s installation guide, he also acknowledged that Sensocon had input in the formatting of Bulletin 103, that he corrected the English in a draft of the manual that Sailsors provided, and that he understood that Bulletin 103 was similar to Dwyer’s installation guide for the Magnehelic® gauges. (Sensocon Dep. 67-69, ECF No. 110-3.) Kohl’s familiarity with Dwyer’s installation guide is consistent with his experience in Dwyer’s employment selling Magnehelic® gauges. This familiarity, along with the fact that Kohl solicited the manual from Sailsors, edited the draft Sailsors provided, and made the manual available through Sensocon’s website, is sufficient for the Plaintiff to create a genuine issue of material fact concerning Kohl’s liability for copyright infringement. The fact that Kohl did not “understand Sailsors to have copied Dwyer’s installation guide” only speaks to his lack of knowledge of how Sailsor obtained the material for the manual, but does not foreclose a finding that he was willfully blind to infringing activity. See In re Aimster Copyright Litigation, 334 F.3d 643, 650 (7th Cir.2003) (“Willful blindness is knowledge, in copyright law (where indeed it may be enough that the defendant should have known of the direct infringement).”). B. Count II — Trademark Infringement of the Magnehelic® Mark; Count IV — Unfair Competition/False Designation of Origin of Magnehelic® Mark and of Pre-Registered Lens Mark Count II of the Plaintiffs First Amended Complaint alleges that the Defendants violated 15 U.S.C. § 1114 by using a mark that is identical or confusingly similar to its Magnehelic® Mark in connection with the sale of Sensocon Series S2000 pressure gauges. One example the Plaintiff cited in the First Amended Complaint is a marketing flyer titled “Why should we buy and sell Sensocon Products?” (Flyer). (Flyer, First Am. Compl., Ex. F, ECF No. 52 at 41.) The Defendants argue that they are entitled to summary judgment on Count II because the Flyer is not infringing. The Defendant note that they used text referring to Magnehelic® in the Flyer to describe the Plaintiffs model Series 2000 gauges, which are not readily identifiable without the Magnehelic® Mark, and argue that this constitutes valid comparative advertising. They assert that, as comparative advertising, the Flyer does not suggest joint sponsorship or endorsement by the Plaintiff, but instead communicates that consumers should buy from Sensocon instead of the Plaintiff. The Plaintiff argues that the Defendants are mistaken that the only marketing at issue in this litigation is the Flyer. The Plaintiff asserts that, as of April 2011 when it filed its response brief, the Defendant continued to use the Magnehelic® Mark on the Sensocon website, and in connection with the sale of the Sensocon Series S2000 differential pressure gauge through TEK Instrument. More particularly, the Plaintiff objects to TEK Instrument offering for sale on its website a gauge called the “Series S2000 Differential Pressure Gauge — Magnehelic® Alternative.” The Plaintiff asserts that TEK Instrument also sends out invoices for the Sencocon Series S2000 gauge that say “Magnehelic® Alternative,” without attributing the Magnehelic® trademark to Dwyer. The Plaintiff notes that on one page of TEK Instrument’s webpage, the Defendants use the Plaintiffs Magnehelic® mark more than five times, and argues that “[s]uch rampant use is clearly for the purposes of increasing the Defendants^] webpage search results for MAGNEHELIC, and cannot be said to be reasonably necessary to identify Dwyer’s product or to prevent confusion.” (Pl.’s Mem. 15, ECF No. 108.) In reply, the Defendants argue that the Sensocon website is not problematic because it includes the heading “SENSOCON® Series S2000 vs Dwyer® Magnehelic®,” followed by a comparison of the gauges and a notice that “Dwyer® and Magnehelic® are registered trademarks of Dwyer Instruments, Inc.” (Product Comparison, ECF No. 108-27), and thus clearly conveys that Sensocon and Dwyer are competitors and invites purchasers to compare the different gauges. The Defendants argue that they are not responsible for the actions of TEK Instrument or other third parties and that, in any event, the TEK Instrument website uses the same permissible comparison language and likewise designates Magnehelic® as a registered trademark of Dwyer®. Count IV of the Plaintiffs First Amended Complaint asserts that the Defendants’ use of the Magnehelic® Mark and the Lens Mark in connection with the sale of pressure gauges constitutes false designation of origin or false description or representation in violation of 15 U.S.C. § 1125. The Plaintiff alleges that, in doing so, the Defendants have unfairly competed with the Plaintiff. In making this claim, the Plaintiffs First Amended Complaint specifically references marketing materials, the installation and operation manual for the S2000 Sensocon differential pressure gauge, and the Flyer titled “Why should we buy and sell Sensocon Products?”. (First Am. Compl., Exs. A, B, C & F, ECF No. 52.) The Defendants argue that the Court should grant them summary judgment on this claim because Sensocon’s use of the Magnehelic® Mark in the comparison Flyer is not likely to cause confusion. Rather, they contend, the message of the Flyer is that the consumer should purchase products from Sensocon instead of from the Plaintiff. In response, the Plaintiff points to the Defendants’ use of the Magnehelic® Mark on Sensocon’s webpages, in TEK Instrument’s offering of a “Series S2000 Differential Pressure Gauge — Magnehelic® Alternative,” and on invoices. In their Reply, the Defendants address then-use of the Magnehelic® Mark in the Flyer and on Sensocon’s website, arguing that the use is not likely to raise concerns regarding sponsorship by or affiliation with the Plaintiff, and is not likely to cause confusion. In a footnote, the Defendants also point out that the gauges at issue are not identical. The Defendants make reference to the TEK Instrument advertisement, arguing that it “clearly designates that Dwyer is the source of the Magnehelic brand gauge, not Sensocon.” (Defs.’ Reply 11 n. 7, ECF No. 118.) In addition, the Defendants argue that they are not responsible for the actions of TEK Instrument because it is an unnamed third party. With regard to the Lens Mark, the Defendants argue that the Plaintiff cannot recover damages for the Defendants’ use of the Lens Mark before January 14, 2009, because that is the date when the Plaintiff gave them notice of the registration by way of filing its lawsuit. The Defendants argue that no damages are recoverable after December 31, 2009, because they began using the Third Generation Lens, which was not alleged in the First Amended Complaint to be an infringement of the Plaintiffs Lens Mark. The Plaintiffs claim for trademark infringement of its Magnehelic® Mark, Count II, is governed by 15 U.S.C. § 1114, which provides a civil remedy for the registrant of a registered trademark against any person who, without the consent of the registrant ... use[s] in commerce any reproduction, counterfeit, copy, or colorable imitation of a registered mark in connection with the sale, offering for sale, distribution, or advertising of any goods or services on or in connection with which such use is likely to cause confusion, or to cause mistake, or to deceive. 15 U.S.C. § 1114(l)(a). To prevail on its trademark infringement claim, the Plaintiff must establish that its mark is protectable and that the Defendants’ unauthorized use of the mark was likely to cause confusion among consumers. CAE, Inc. v. Clean Air Eng’r, Inc., 267 F.3d 660, 673-74 (7th Cir.2001) (citing Eli Lilly & Co. v. Natural Answers, Inc., 233 F.3d 456, 461 (7th Cir.2000); Smith Fiberglass Prods., Inc. v. Ameron, Inc., 7 F.3d 1327, 1329 (7th Cir.1993)). Section 1125(a), which is the asserted basis for recovery in Count IV, governs infringement of unregistered marks. See Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 768, 112 S.Ct. 2753, 120 L.Ed.2d 615 (1992); Zazu Designs v. L’Oreal, S.A., 979 F.2d 499, 502 (7th Cir.1992). A claim of false designation of origin or sponsorship under § 1125 requires a plaintiff to demonstrate that a defendant: (1) use[d] in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which— (A) is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person. 15 U.S.C. § 1125(a)(1)(A). Thus, as with a trademark infringement claim, a plaintiff must show that: “(1) the defendants have a protectable trademark; and (2) a ‘likelihood of confusion’ will exist as to the origin of the plaintiffs products.” Johnny Blastoff, Inc. v. L.A Rams Football Co., 188 F.3d 427, 435-36 (7th Cir.1999); see also Packman v. Chi. Trib. Co., 267 F.3d 628, 638 & n. 8 (7th Cir.2001) (noting that proof of protectable mark and defendant’s use of the mark likely to cause confusion among consumers is required for both trademark infringement and unfair competition). 1. Protectable Marks The Defendants do not dispute that Magnehelic® has been a registered trademark of the Plaintiff for pressure gauges since 1960. With respect to the Lens Mark, the Defendants take issue with the Plaintiffs claims for damages under § 1125(a) on grounds that the Defendants did not have “actual notice” of the registration of the Lens Mark until January 14, 2009, when the Plaintiff filed its Complaint. The Defendants’ argument relies on a section of the Lanham Act that states: [A] registrant of a mark registered in the Patent and Trademark Office, may give notice that his mark is registered by displaying with the mark the words “Registered in U.S. Patent and Trademark Office” or “Reg. U.S. Pat. & Tm. Off.” or the letter R enclosed within a circle, thus ®; and in any suit for infringement under this chapter by such a registrant failing to give such notice of registration, no profits and no damages shall be recovered under the provisions of this chapter unless the defendant had actual notice of the registration. 15 U.S.C. § 1111. According to § 1117(a), a violation of any right of the registrant of a mark registered in the USPTO or any violation under § 1125(a) entitles the plaintiff to recover the defendant’s profits, damages sustained by the plaintiff, and costs of the action, subject to the provisions of § 1111. 15 U.S.C. § 1117(a). The Defendants’ argument does not compel summary judgment in their favor. Section 1111 permits holders of registered trademarks to use the ® symbol or certain language to provide notice to others of its registration. Only when the mark holder fails to “give such notice of registration,” 15 U.S.C. § 1111, either by displaying the ® with the mark or printing one of the other notices near the mark, are damages in an infringement action then limited to situations where the defendant had “actual notice of the registration,” id. The Plaintiff began using the® symbol in connection with the lens design in May 2008. Count I of the Plaintiffs First Amended Complaint, a claim for trademark infringement under § 1114, is directed at the Defendants’ use of the Lens Mark after May 2008. The claim of infringement of the lens design before it was registered comes within Count TV’s § 1125(a) claim. The limitation in § 1111 does not apply to Count IV. As one treatise author explains: Since 1989, [§ 1117] statutory damages for a violation of [§ 1125(a) ] for infringement of an unregistered mark are “subject to” the provisions of the [§ 1111] requirements of notice. But because the [§ 1111] requirement of notice only applies to registered marks, it is, of course, not a limitation on recovery of damages under a [§ 1125(a)] count for infringement of an unregistered mark. S McCarthy on Trademarks & Unfair Competition § 19:144 (4th ed.). This Court agrees that the notice language of § 1111 only applies to registered marks and to claims for infringement of such registered marks. It would have been improper and incorrect for the Plaintiff to notify the Defendants that the design of its lens was registered before the actual date of registration. McCarthy goes on to note: The more problematic question is whether a registrant who proves infringement under both [§ 1114(1) ] (registered mark) and [§ 1125(a) ] (unregistered mark) can avoid the notice limitation imposed by [§1111] by claiming all of its damages fall under the [§ 1125(a) ] count. A strict reading of the statutory language of [§ 1111] would, in the author’s opinion, lead to the conclusion that such a registrant cannot avoid the [§ 1111] damage limitation by using [§ 1125(a) ]. Section [§ 1111] does not distinguish between the kind of statutory infringement that a registrant proves. Rather, [§ 1111] simply states that no profits and damages shall be recovered “under the provisions of this Act” unless statutory or actual notice was given. Id. Here, the Plaintiff has not attempted to claim all of its damages under § 1125(a) or otherwise used § 1125(a) in an attempt to avoid the damage limitation. Rather, the Plaintiff asserted a violation of § 1125(a) as the mechanism to recovery for infringement that occurred before the design of its lens was registered as a trademark. Under these circumstances, the Court finds that the Plaintiff is eligible to recover damages for any infringement under 15 U.S.C. § 1125(a) that occurred before the lens mark was registered, and may do so without reference to § 1111. See, e.g., GTFM, Inc. v. Solid Clothing, Inc., 215 F.Supp.2d 273, 306 (S.D.N.Y.2002) (stating that the plaintiff could recover damages for any infringement that occurred before the date of the mark’s registration under 15 U.S.C. § 1125(a) but that for infringement occurring after the date of the registration the plaintiff has to satisfy the notice requirements of § 1111 to recovery profits and damages); Bambu Sales, Inc. v. Sultana Crackers, Inc., 683 F.Supp. 899, 912 (E.D.N.Y.1988) (stating that absence of statutory notice was not relevant to claim under § 1125 because registration was not a prerequisite to the cause of action). In their Motion for Partial Summary Judgment, the Defendants’ only challenge to the Plaintiffs ability to pursue a claim under § 1125(a) for the Defendants’ use of the Lens Mark is their argument that the Defendants did not have actual notice of registration. The Defendants have not designated any evidence or advanced any argument concerning whether the Plaintiff had a protectable trademark interest in the plurality of horizontal lines and raised rectangular portion, and the Court assumes for purposes of summary judgment that the issue is not in dispute. The Plaintiff will bear the burden of proving at trial its protectable interest in the lens design prior to its registration of the Lens Mark. 2. Likelihood of Confusion — Magnehelic® Mark The Defendants’ Motion for Partial Summary Judgment raises a defense for their use of Magnehelie® that implicates the likelihood of confusion prong of a trademark infringement claim. A statutory “fair use” defense allows a defendant to avoid liability even where the plaintiff has proven likelihood of confusion and the other elements of a prima facie case of infringement. KP Permanent Make-Up, Inc. v. Lasting Impression I, Inc., 543 U.S. 111, 124, 125 S.Ct. 542, 160 L.Ed.2d 440 (2004); 15 U.S.C. § 1115(b)(4) (creating an affirmative defense to a claim of infringement where the name “charged to be an infringement is a use, otherwise than as a mark ... of a term or device which is descriptive of and used fairly and in good faith only to describe the goods or services of such party, or their geographic origin”). The Defendants, rightly, do not attempt to rely on this affirmative defense, which would not apply because “Magnehelie” is not descriptive of Sensocon’s product or its geographic origin. Instead, the Defendants rely on the “nominative fair use” defense that was first recognized by the Ninth Circuit in situations where a defendant uses the plaintiffs trademark to describe the plaintiffs product. “The nominative fair use analysis acknowledges that it is often virtually impossible to refer to a particular product for purposes of comparison, criticism, point of reference or any other such purpose without using the mark.” Horphag Research Ltd. v. Pellegrini, 337 F.3d 1036, 1041 (9th Cir.2003) (quoting Brother Records, Inc. v. Jardine, 318 F.3d 900, 908 (9th Cir.2003) (quoting New Kids on the Block v. News Am. Publ’g, Inc., 971 F.2d 302, 306 (9th Cir.1992))) (quotation marks omitted); see also Rosetta Stone Ltd. v. Google, Inc., 676 F.3d 144, 154 (4th Cir.2012) (noting that “[ujnlike the typical infringement fact-pattern wherein the defendant passes off another’s mark as its own and confuses the public as to precisely whose goods are being sold, a nominative use is one in which the defendant uses the plaintiffs trademark to identify the plaintiffs own goods”) (citing Century 21 Real Estate Corp. v. Lendingtree, Inc., 425 F.3d 211, 217 (3d Cir.2005); Tiffany (NJ) Inc. v. eBay Inc., 600 F.3d 93, 102 (2d Cir.2010)) (brackets, quotation marks, and citations omitted). Nominative fair use is only available “if the use of the trademark does not attempt to capitalize on consumer confusion or to appropriate the cachet of one product for a different one.” Horphag, 337 F.3d at 1041 (quoting Brother Records, 318 F.3d at 908, (quoting New Kids, 971 F.2d at 307-08)) (quotation marks omitted). The Ninth Circuit has identified three factors to determine whether a defendant is entitled to the nominative fair use defense: (1) the product must not be readily identifiable without use of the mark; (2) only so much of the mark may be used as is reasonably necessary to identify the product; and (3) the user must do nothing that would, in conjunction with the mark, suggest sponsorship or endorsement by the trademark holder. Id. (citing New Kids, 971 F.2d at 308). Although the Ninth Circuit’s approach has not been universally adopted, several courts have recognized that, “[i]n the context of a referential or nominative type of use, the application of the traditional multi-factor test is difficult because often many of the factors ‘are either unworkable or not suited or helpful as indicators of confusion in this context.’ ” Rosetta Stone, 676 F.3d at 154 (quoting Century 21, 425 F.3d at 224); see id. at 155 (clarifying that it was not “adopting a position about the viability of the nominative fair-use doctrine as a defense to trademark infringement or whether this doctrine should formally alter our likelihood-of-confusion test in some way”). See also 4 McCarthy on Trademarks § 23:11 (noting that the Ninth Circuit’s nominative fair use “elements can be restated in terms of factors to determine if there is a likelihood of confusion” and are an “alternative to the standard multi-part tests used to determine if there is a likelihood of confusion”). For example, as stated by the Fourth Circuit in Rosetta Stone, the similarity of the marks and the strength of the plaintiffs mark are of limited value in such cases: Consideration of the similarity of the marks will always suggest the presence of consumer confusion — the mark used will always be identical “because, by definition, nominative use involves the use of another’s trademark in order to describe the trademark owner’s own product.” Century 21, 425 F.3d at 224. The similarity factor does not account for context and “leads to the incorrect conclusion that virtually all nominative uses are confusing.” Playboy Enters., [Inc. v. Welles,] 279 F.3d [796,] 801 [ (9th Cir.2002) ]. 676 F.3d at 154 (brackets and citations omitted). In addition, the strength of the mark is often not informative as to confusion where the defendant is not passing off its products under the plaintiffs mark but using the plaintiffs mark to refer to the plaintiffs own products. Rosetta Stone, 676 F.3d at 154-55. The Seventh Circuit has not ruled on the applicability of the nominative fair use defense, and has not referenced it even in the context of a defendant’s use of a mark to describe the plaintiffs product. See August Storck K.G. v. Nabisco, Inc., 59 F.3d 616, 618 (7th Cir.1995) (stating that in the context of the defendant’s use of a competitor’s trademark on candy packaging to compare sugar levels that “use of a rival’s mark that does not engender confusion about the origin or quality ... is permissible”) (citing Prestonettes Inc. v. Coty, 264 U.S. 359, 44 S.Ct. 350, 68 L.Ed. 731 (1924); Saxlehner v. Wagner, 216 U.S. 375, 30 S.Ct. 298, 54 L.Ed. 525 (1910); Calvin Klein Cosmetics Corp. v. Lenox Labs., Inc., 815 F.2d 500 (8th Cir.1987); G.D. Searle & Co. v. Hudson Pharm. Corp., 715 F.2d 837 (3d Cir.1983)). In August Storck, the Seventh Circuit considered the defendant’s use of the plaintiffs mark to be comparative advertising, and noted that it was beneficial to consumers because they could “learn at a glance what kind of product is for sale and how it differs from a known benchmark.” 59 F.3d at 618. Both the Plaintiff and the Defendants cite to the Ninth Circuit’s test in their briefs before this Court and, in doing so, do not explicitly address the Seventh Circuit’s seven-factor test. The Defendants argue that they have satisfied the Ninth Circuit’s nominal fair use test. The Plaintiff argues that the Defendants could have provided a product comparison without the multiple use of its trademark, and that the Defendants’ use suggests sponsorship or endorsement by the Plaintiff because customers familiar with the Plaintiffs Magnehelic® mark would “only assume that the advertised products are endorsed or sponsored by Dwyer because the MAGNE-HELIC mark has become associated with Dwyer through Dwyer’s extensive sales and advertising of the mark.” (Pl.’s Mem. 15-16, ECF No. 108.) Taking into account the various relevant factors from the Seventh Circuit’s test, modified for nominative fair use in the context of comparative advertising, the Court considers whether the Plaintiff has presented evidence from which a jury could find that the Defendants’ use of its Magnehelic® Mark is likely to confuse consumers as to the source of the Defendants’ product, keeping in mind that the inquiry is fact intensive and that the Court must construe the facts most favorably to the nonmoving party. a. Flyer: “"Why should we buy and sell Sensocon Products?” The Defendants used the Plaintiffs Mark one time on the Flyer, stating that its Series S2000 is.a “direct replacement to the Dwyer Series 2000 (Magnehelic).” (Flyer, ECF No. 52 at 41.) The Plaintiff asserts that the Defendants could have provided a comparison without using its trademark, but does not state how the Defendants could have accomplished this, as the Magnehelic® brand is not readily identifiable without the use of the Magnehelic® mark. When making reference to the Dwyer® Magnehelic® the Defendants do not use distinctive font, typeface, or lettering unique to the Plaintiffs mark, and thus do not use more of the Mark than is reasonably necessary to identify the Plaintiffs product. The Flyer uses the Magnehelic® mark only to convince readers to buy Sensocon Products instead of the Plaintiffs product.' The Plaintiff offers no-examples of actual confusion as a result of the Flyer,' no evidence that the Defendants intended to palm the Plaintiffs product off as their own, no facts suggesting that consumers reading about the product comparisons are unlikely to use care in determining the source of the gauges, and no details regarding where or how the Flyer was observed by potential customers. In fact, the Defendants claim that, as a result of the cease and desist letter, they never distributed the Flyer and the Plaintiff has not presented evidence to dispute this fact. For these reasons, the Court finds that the Plaintiff has not identified facts from which a reasonable jury could find that the Defendants used the Plaintiffs Magnehelic® mark in the Flyer in a manner that was likely to cause confusion. b. Sensocon Website Sensocon’s website informs viewers that Sensocon gauges may by used in applications where the “Dwyer® Magnehelic® brand gages may be used” (Product Comparison, ECF No. 108-27), and contains a one-page comparison of the two brands. The website states that all information regarding Dwyer® Magnehelic® gauges is based on information taken from Dwyer’s catalog, and attributes the marks to Dwyer Instruments, Inc. After the comparison of the two brands, Sensocon states that it will beat any price quoted for the Plaintiffs Magnehelic® brand gauge quoted or invoiced by Dwyer Instruments. This manner of use evidences competition, not sponsorship or endorsement. The Plaintiff offers no examples of actual confusion as a result of the Sensocon website, evidence that the Defendants intended to palm the Plaintiffs product off as their own, or facts suggesting that consumers reading about the product comparisons are unlikely to use care in determining the source of the gauges. Although the products, intended customers, and the channels of trade are the same, persons viewing the Defendants’ use of the Magnehelic® Mark on the Sensocon website will only do so in the context of a clear attempt to compare and distinguish the Plaintiffs product from Sensoeon’s product and gain a sale for Sensocon. The Plaintiff submits, without any legal analysis, that the Defendants’ rampant use of its Mark is for the purposes of increasing the Defendants’ webpage search results for Magnehelic. This reference to Internet advertising implicates the discussion in Promatek Industries, Ltd. v. Equitrac Corp., 300 F.3d 808 (7th Cir.2002), regarding initial interest confusion. In Promatek, the defendant placed the plaintiffs trademark in its metatag, thereby diverting web consumers to the defendant’s website. Id. at 812. The court held that this was a misappropriation of the plaintiffs goodwill even if the consumers were no longer misled once they reached the defendant’s website. Id. (“[T]hat confusion as to the source of a product or service is eventually dispelled does not eliminate the trademark infringement which has already occurred.”) (quoting Forum Corp. of N. Am. v. Forum, Ltd., 903 F.2d 434, 442 n. 2 (7th Cir.1990)); see also Dorr-Oliver, Inc. v. Fluid-Quip, Inc., 94 F.3d 376, 382 (7th Cir.1996) (explaining that initial interest confusion is actionable under the Lanham Act and occurs when a competitor gets its foot in the door by confusing consumers with the similarity of the mark, even if the customer realizes the true source of the goods before the sale is consummated). The Promatek court explained that using another’s trademark in metatags was much like posting a sign with another’s trademark in front of a store. Id. at 813 (“Customers believing they are entering the first store rather than the second are still likely to mill around before they leave.”) (citing Brookfield Comm’ns, Inc. v. W. Coast Entm’t Corp., 174 F.3d 1036, 1064 (9th Cir.1999)); cf. Eli Lilly & Co., 233 F.3d at 465 (noting that the defendant’s references to the plaintiffs trademark (PROZAC®) in its website source codes was evidence of wrongful intent to divert Internet users searching for information on PROZAC® to the defendant’s website). The court found that the danger of initial interest confusion that applied to terms used in metatags also applied to terms used on websites. 300 F.3d at 813. Initial customer confusion could thus exist if the Defendants’ repeated use of the Magnehelic® Mark on websites selling Sensocon products caused consumers who were looking for the Plaintiffs product to visit the Defendants’ website under the mistaken impression that it was a site where Magnehelic® gauges were offered for sale — even if these potential buyers then saw Sensocon’s attempt to define its product as an alternative to the Plaintiffs Magnehelic® and realized that the Plaintiff did not sponsor or endorse the Defendants’ product. However, in an infringement action, the Plaintiff bears the burden of proving likelihood of confusion, and the Plaintiff has not presented any evidence to suggest that, even if the Defendants intended to increase Sensocon’s Internet traffic through search results for Magnehelic, any such purpose was successful achieved. For example, the Plaintiff has not designated any evidence that individuals who conduct website searches containing the word Magnehelic have been or will be directed to websites offering the Defendants’ products instead of to the Plaintiffs website or authorized dealer websites. “A genuine issue of material fact arises only if sufficient evidence favoring the nonmoving party exists to permit a jury to return a verdict for that party.” Faas v. Sears, Roebuck & Co., 532 F.3d 633, 640-41 (7th Cir.2008) (quotation marks omitted). Here, there is no evidence from which a reasonably jury could find that the Defendants’ use of the Magnehelic® Mark on the Sensocon website created customer confusion, initial or otherwise. c. Other Websites The TEK Instrument website lists a product referred to as a Magnehelic® Alternative. Because this use of the Plaintiffs Mark is not an attempt to describe the Plaintiffs product, but names, describes, and identifies the Defendants’ product, it does not present a nominative fair use scenario. See Cairns v. Franklin Mint Co., 292 F.3d 1139, 1151 (9th Cir.2002) (“The nominative fair use analysis is appropriate where a defendant has used the plaintiffs mark to describe the plaintiffs product”); New Kids, 971 F.2d at 308 (holding that it was legal to use a senior user’s trademark in a non-confusing way to identify the senior user’s goods); McCarthy § 23:11 (describing nominative fair use as the “use of another’s trademark to identify, not the defendant’s goods or services, but the plaintiffs goods or services”). The Plaintiff has gone beyond comparing its product to the Plaintiffs Magnehelic® and used the Plaintiffs mark in a manner that suggests it is part of the name of the Defendants’ product. Although the website attributes the mark to Dwyer Instruments, Inc. (Product Descriptions, ECF No. 108-31), it does not do so on every page where the mark appears. Further, even with the ascription to Dwyer, it is not obvious from viewing the website whether Dwyer is associated with TEK Instrument or Sensocon, or has endorsed the products. Neither does the information that the “Series S2000 may be used in all applications where the Dwyer® Magnehelic® brand gages may be used” clarify that the two gauges are not from the same source. (Id.) A reasonable consumer could believe that the Plaintiff manufactured alternatives to its own products in an attempt to increase market share. The products serve an identical function and are sold through the same channels of trade. Merely stating that Magnehelic® is a registered trademark of the Plaintiff does not fully reflect the relationship between the Plaintiffs and the Defendants’ products, particularly where the name of the Sensocon product includes the Plaintiffs trademark and nothing alerts potential customers that Dwyer does not make or license the Magnehelic® Alternative. The Plaintiffs submissions establish genuine issue of material fact whether this use of the Plaintiffs mark creates a likelihood of confusion. The Defendants assert that they cannot be held liable for the alleged acts of infringement on the webpage of TEK Instrument because it is not a party to this suit. The designated evidence shows that Kohl is the sole shareholder of TEK Instrument and that it has no other employees, officer, directors, board members, or owners. To the extent that Kohl participated directly in the activities that the Plaintiff claims constitute infringement of its intellectual property rights on the TEK Instrument website, the Plaintiff may proceed against him. d. Invoices Invoices from TEK Instrument refer to “Series S2000 Differential Pressure Gauge — Magnehelic® Alternative” without attributing the mark to the Plaintiff. Viewing the facts in the light most favorable to the Plaintiff, and for the reasons stated above regarding the inclusion of the Plaintiffs mark in the name of the Defendants’ product, a reasonable finder of fact could conclude that the Defendants’ conduct suggests sponsorship or endorsement by the Plaintiff. 3. Limits on Recovery for Trademark Infringement Involving the Lens Mark The Defendants seek a summary judgment ruling limiting the damages the Plaintiff may recover. They assert that the Plaintiff cannot recover damages for any alleged infringement that occurred after December 31, 2009, because it is the last date the Defendants sold any gauges with a plurality of horizontal lines and a raised rectangular portion. Instead, the Defendants began selling Sensocon’s Third Generation Lens gauges, which do not have a plurality of horizontal lines or a raised rectangular portion. The Plaintiff counters that the Defendants continued, after December 31, 2009, to “contribute to infringement and commercially benefit from” its first generation lens. As evidence, the Plaintiff points to the webpages for certain Sensocon customers and for Jupiter Electronics, a distributor of Sensocon, who continue to advertise gauges with the original lens design. These webpages are provided as Exhibits AA and BB to the Plaintiffs response. In the Declaration of Budny, he states that Exhibit AA is true and accurate copies of relevant website pages, easily accessible from within the United States, located at http://www.walesinst.com/seses2.html (viewed April 18, 2011), http://www. autocalsystems.com/MAGNEHELIC% 20GAUGE.htm (viewed April 21, 2011), http://www.icoolsmart.com/sensocon/ seriesS2000.htm (viewed April 13, 2011), and http://www.status-automation.com/ products — sensocon.html (Viewed April 18, 2011), depicting the continued use of the Sensocon gauge with the first generation lens to advertise Sensocon gauges and http://www.eeprocess.com/STORE/ item330.htm (viewed April 18, 2011), depicting the continued use of the Sensocon gauges with the second generation lens to advertise Sensocon gauges. (Budny Declaration ¶ 24, ECF No. 108-3.) With respect to Exhibit BB, he states that it is true and accurate copies of website pages, located at http://jupiterelectronics. com/low-cost-differential-pressure-guage. html, which depicts that the first generation lens Sensocon gauges are still being advertised for sale by Jupiter Electronics. (Id. ¶ 25.) Budny stated he last visited the site on April 15, 2011. The Plaintiff asserts that the Defendants “have every reason to know that their customers are advertising Defendants’ differential pressure gauges with the Defendants’ first generation lenses.” (Pl.’s Mem. 9, ECF No. 108.) The Plaintiff further notes that the websites are readily available and claims that it would be “bad business practice” for the Defendants not to review the websites of their major customers for infringing product. Kohl testified during the Rule 30(b)(6) deposition of Sensocon, conducted on June 29, 2010, that its distributor, Jupiter, was no longer selling gauges with the original S2000 lens design, but he did not know if he informed his distributors that they were no longer entitled to use that lens design in marketing. (Sensocon Dep. 139, ECF No. 110-3.) In addition, upon being shown a copy of Jupiter’s web pages with the Sensocon gauges, Kohl testified that he was not aware of the content of Jupiter’s website. (Id. 140.) The Plaintiff argues that the Defendants may be held liable for the infringing acts of distributors under the reasoning set forth by the Supreme Court in Inwood Laboratories, Inc. v. Ives Laboratories, Inc., 456 U.S. 844, 854, 102 S.Ct. 2182, 72 L.Ed.2d 606 (1982). The Defendants disagree, and argue that Inwood does not support the Plaintiffs claim. In Inwood Laboratories, the Court confirmed that contributory infringement is actionable as follows: [Liability for trademark infringement can extend beyond those who actually mislabel goods with the mark of another. Even if a manufacturer does not directly control others in the chain of distribution, it can be held responsible for their infringing activities under certain circumstances. Thus, if a manufacturer or distributor intentionally induces another to infringe a trademark, or if it continues to supply its product to one whom it knows or has reason to know is engaging in trademark infringement, the manufacturer or distributor is contributorially responsible for any harm done as a result of the deceit. Inwood Labs., 456 U.S. at 853-54, 102 S.Ct. 2182 (citing William R. Warner & Co. v. Eli Lilly & Co., 265 U.S. 526, 44 S.Ct. 615, 68 L.Ed. 1161 (1924); Coca-Cola Co. v. Snow Crest Bevs., Inc., 64 F.Supp. 980 (D.Mass.1946)). Thus, under Inwood Laboratories, a defendant can be contributorially liable if it continues to supply its product to one whom it knows or has reason to know is engaging in trademark infringement. Here, too many questions remained unanswered by the designated evidence and the parties’ briefs to determine whether the Defendants were contributorially responsible for the actions of Jupiter and others. Kohl states that Jupiter no longer sold gauges with the original lens design after December 31, 2009, but he provides no basis for his personal knowledge of Jupiter’s sales. There is no mention in the record whether it was possible Jupiter had an inventory of the gauges that preceded the Third Generation Lens, and no explanation why it was still using pictures of the old lens design in April 2011, more than a year after the Defendants claim they were no longer selling the product, and almost a year after Kohl was alerted during a deposition that Jupiter’s website contained potentially infringing material. The parties do not address in any detail whether the marketing by Jupiter and others induced sales. The Plaintiffs, however, do present evidence that some of the orders placed by customers in 2009 were not completed until 2010, and the Defendants have not disputed this evidence for purposes of summary judgment. The Defendants are not entitled to summary judgment on the defense that the Plaintiff can