Garcia

I. Factual and Procedural Background

The facts of this case are largely the same as those upon which we based our previous opinion, and we recount them only in brief detail here. In 1969, Dr. Jack Masquelier, a French professor of pharmacology, discovered a chemical antioxidant substance made from the bark of a French mari- time pine tree. The substance supposedly assists in nutritional distribution and proper circulation. Around 1978, Masquelier brought the product to market under the name “Pycnogenol.” Masquelier1 received the trademark in France for the mark Pycnogenol in 1989.

Around 1987, Horphag began selling the pine bark extract outside of France under contractual relationship with Masque- lier. Thereafter, things between Horphag and Masquelier went sour, and the two parties dissolved their relationship. In 1993, Horphag was granted the United States trademark for the mark Pycnogenol.2 Since then, Horphag has made extensive efforts to control the quality of Pycnogenol and has invested heavily in research and marketing its product. Pycnogenol is now one of the fifteen most sold herbal supplements in the United States. Horphag has not authorized any other entity to…