Morgan

This is an action for trademark infringement and unfair business practices. Appellant, Mallard Creek Industries, Inc. (Mallard Creek), sought an injunction to prevent respondents, Gary Morgan and Gary Morgan, Inc., doing business as Mallard Creek Distributors (collectively Mallard Creek Distributors), from using the former’s name and logo to sell bagged wood shavings. Mallard Creek Distributors claimed it had permission to use Mallard Creek’s name and logo and had done so for over 10 years without objection. Mallard Creek Distributors relied on Business and Professions Code section 14342 which prevents actions for infringement of a registered trademark against anyone who has adopted and lawfully used the same or confusingly similar mark in the manufacture or sale of the same or similar goods from a date prior to the complaining party’s registration of the trade or service mark. Mallard Creek Distributors also claimed it had permission to use Mallard Creek’s name and logo without limitation.

The trial court found Mallard Creek Distributors had “used” Mallard Creek’s name and trademark with its permission for years prior to Mallard Creek’s registration of its logo with the…