Carter

MEMORANDUM **

In the late 1980s, Carter Electric Corporation and E. Ray Carter (collectively, “Carter”) designed and began to produce the Rocket Perma-Post (“Perma-Post”). The Perma-Post is a polyvinyl chloride *717 plastic post that supports outdoor lighting fixtures. In 1989, Carter obtained a utility-patent for the Perma-Post. Meanwhile, Engineered Products Co. (“EPCO”) started producing its own version of the Per-ma-Post. EPCO specifically avoids using the patented metal bushing of the PermaPost, but copies most of the remaining elements with only minor variations. EPCO sells its lighting posts under its own name and for resale under the names of other producers. EPCO does not pay any licensing fees to Carter.

On April 4, 1996, Carter filed a complaint in federal district court alleging trade dress infringement under the Lanham Act. The district court denied EPCO’s motion for summary judgment and Carter’s requests for a jury trial, but on the eve of a bench trial, this court granted Carter’s petition for mandamus and ordered that the trial proceed by jury. During the jury trial, the district court granted EPCO’s motion for judgment as a matter of law on the issue of willful…