Following a trial, a jury found that defendants had engaged in unfair competition and false advertising for improper use of the trademark FISHMAN, but declined to find the defendants’ conduct willful. In this post-trial decision Judge O’Toole correspondingly declined to grant plaintiff’s request for an accounting of defendant’s profits.
The court ruled that following the First Circuit’s test an accounting was not justified because (1) defendant’s profits were not a measure of harm to plaintiff since the parties were not in direct competition, (2) an accounting would not avoid unjust enrichment because the defendants acted innocently and an accounting was otherwise uncalled for based on factors enumerated in the Restatement of Unfair Competition, and (3) the defendants’ conduct was not willful as found by the jury (and seconded by the judge).
Fishman Transducers, Inc. v. Paul, 07-10071-GAO (D. Mass. Mar. 29, 2011)