Citations
- 718 F. Supp. 1259
Full opinion text
PRELIMINARY INJUNCTION
McMILLAN, District Judge.
On October 19,1988, plaintiff moved that the court issue a temporary restraining order and an order to show cause for a preliminary injunction pursuant to Fed.R. Civ.P. 65(b). The motion was heard on November 1, 1988, at 2:00 P.M. The defendant appeared at the hearing to present evidence and stipulated that plaintiffs motion should be treated as a motion for preliminary injunction under Fed.R.Civ.P. 65(a).
In its verified complaint, filed October 3, 1988, plaintiff Sathers Inc. (“Sathers”) alleges that defendant Caravan Candy Co, (“Caravan”) is packaging and selling candy in a transparent bag with a closure label identical to the closure label used by Sath-ers, in violation of the Lanham Act (the Trademark Act of 1946), 15 U.S.C. §§ 1051-1127 (1982 & Supp.1986), and North Carolina common law. Plaintiff now seeks to enjoin defendant from using the alleged “infringing” label or any other “confusingly” similar trade dress during the pendency of this suit.
FINDINGS OF FACT
Plaintiff Sathers, a Delaware corporation, is a national distributor and manufacturer of candy products. Verified Complaint para. 1. Sathers typically packages and resells candy manufactured by other companies in a transparent bag with a red and yellow closure label characterized by certain design features. Verified Complaint para. 6; PI. Exs. 1A-9A. An example of plaintiff's label is attached. Pl.Ex. 2A. Sathers also manufactures its own candy products which it packages and sells using this label. Verified Complaint para. 6.
Sathers has advertised, distributed and sold candy products throughout the continental United States, using its label for at least ten years. Id. Sathers’ revenue from candy sold using this label amounts to hundreds of millions of dollars. Id.
Defendant Caravan, a West Virginia corporation, also packages and distributes candy products manufactured by other companies. Verified Complaint para. 13; Affidavit of Morgan Campbell para. 2. In the past, Sathers hired Caravan to pack some candy products for Sathers using the Sath-ers label. Verified Complaint para. 13. As a result of that work, defendant was familiar with and had access to Sathers label. Id.
Defendant has offered for sale and sold in this district candy products packaged with a closure label identical to the Sathers label, except for the substitution of the name “Caravan” for the name “Sathers,” the use of a different name for the same candy product and/or printing the name in a different type style, and a different printed net weight of the same candy product. PI. Exs. 1B-9B; Affidavit of L. Grace Mercer. An example of defendant’s label is attached. Pl.Ex. 2B.
A careful examination of the attached examples reveals that a mistake in the Sathers label is duplicated in the Caravan label. The numeral “8” in the copy “SAVE 18