Lindy Pen Company, Inc., and Blackfeet Plastics, Inc. v. Bic Pen Corporation

Lindy Pen Company, owner of a trademark registration for the word “Auditor’s” in connection with ballpoint pens, sued Bic Pen Corporation for trademark infringement, unfair competition, breach of contract and trademark dilution. After a bench trial limited to the issues of liability, the district court entered judgment for Bic on all claims. Lindy Pen Co. v. Bic Pen Corp., 550 F.Supp. 1056 . Lindy appeals.

BACKGROUND

Both Lindy and Bic manufacture a variety of ballpoint pens. In 1955, Lindy began to use the word “Auditor’s” in connection with the sale of its 460-F model fine point, non-refillable, stick pen. In 1966, Lindy obtained federal trademark registration for the use of “Auditor’s” in connection with the sale of ballpoint pens. Lindy imprints the mark on the barrel of its model 460-F fine point pens and uses it on the packaging and advertisements for 460-F pens. Lindy sells most of its 460-F pens to the retail trade. The record appears to indicate that Lindy has also sold 460-F pens to at least one distributor in the commercial trade.

Bic manufactures a fine point pen, model PF, imprinted with the phrase “Auditor’s fine point.” It adopted the designation in 1979 in order…