Lindy Pen Company, Inc. Blackfeet Plastics, Inc., Cross-Appellees v. Bic Pen Corporation, Cross-Appellant

Bad Law

93 Daily Journal DAR 673·982 F.2d 1400·25 U.S.P.Q. 2d (BNA) 1570·1993 U.S. App. LEXIS 345·93 Cal. Daily Op. Serv. 309

United States Court of Appeals for the Ninth CircuitJanuary 14, 199390-55248, 90-55249California5,591 words

Opinion

Roll, J.

This trademark infringement case brought by Lindy Pen Company, Inc. against Bic Pen Corporation returns to this court for the third time seeking review of the district court’s damages order upon remand. For the reasons set forth below, we affirm the decision of the district court and deny Bic’s cross-appeal.

INTRODUCTION

The origins of this case go back to the mid-1960s when Appellant Lindy Pen Company (Lindy) and Appellee Bic Pen Corporation (Bic) were competitors in the production and manufacture of ball point pens. Each marketed a fine-point tip for use by accountants and auditors. In 1965, before Lindy’s trademark was perfected and registration issued, Bic used the mark “Auditor’s” on its pen barrels. Lindy contacted Bic, making a claim to the mark, and Bic voluntarily agreed to stop using it. On September 20, 1966, United States Trademark Registration No. 815,488 was issued to Lindy for the word “Auditor’s.” Lindy Pen Co., Inc. v. Bic Pen Corp., 550 F.Supp. 1056, 1059 (C.D.Cal.1982). Lindy perfected the registration by filing the appropriate documents pursuant to federal statute. Id.

Fourteen years later, Bic adopted the legend “Auditor’s Fine Point” to describe a certain…

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