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LESPORTSAC, INC. v. K MART CORP.

September 18, 1984

LESPORTSAC, INC., Plaintiff, against K MART CORPORATION, Defendant.


The opinion of the court was delivered by: MCLAUGHLIN

MEMORANDUM AND ORDER

McLAUGHLIN, District Judge

Following a hearing in this action, the Court issued a memorandum on July 11, 1984 finding that defendant was infringing plaintiff's trademark and trade dress for lightweight nylon luggage; a preliminary injunction was entered on July 13, 1984. Defendant now moves for an order modifying the preliminary injunction to allow it to sell the luggage in question; and plaintiff cross-moves to broaden the injunction. *fn1" For the reasons developed below, defendant's motion is denied and plaintiff's cross-motion is granted.

 Defendant's Motion to Modify the Injunction

 Defendant requests that the preliminary injunction be modified to permit it to sell the enjoined bags if a hangtag is attached which states prominently:

 di paris sac

 SOLD EXCLUSIVELY AT AND

 MADE EXCLUSIVELY FOR K MART *fn2"

 Defendant contends that attaching this label would remove the likelihood of confusion that prompted the Court to issue the preliminary injunction.

 The Court has reviewed the proceedings to date in this action, the memorandum of July 11, the facsimile of the tag defendant proposes to use and the memoranda submitted with respect to this motion. Based upon that review, the motion is denied. K Mart's contention that adding a hangtag would eliminate the likelihood of confusion is not convincing, and the cases it relies upon for that argument are distinguishable.

 In Sears, Roebuck & Co. v. Stiffel Company, 376 U.S. 225, 11 L. Ed. 2d 661, 84 S. Ct. 784 (1964), the Supreme Court recognized, in dictum, that labeling or "other precautionary steps" may prevent consumer confusion as to the source of a product. Id. at 232. Sears, Roebuck, however, was a patent case, and as the Court recognized in Truck Equipment Service Co. v. Fruehauf Corp., 536 F.2d 1210 (8th Cir. 1976), "[t]he protection accorded by the law of trademark and unfair competition is greater than that accorded by the law of patents. . . ." Id. at 1215.

 LeSportsac, Inc. v. Dockside Research Inc., 478 F. Supp. 602 (S.D.N.Y. 1979), is similarly distinguishable. The presence of a hangtag in that case was just one of the factors leading to denial of a preliminary injunction. Id. at 609. Defendant's bag also had defendant's mark sewn prominently into the bag. In the instant case, however, K Mart's mark appears on the bag only in the repeating elliptical logo. I have previously indicated that K Mart's use of the repeating logo was a factor supporting the granting of the preliminary injunction. Accordingly, defendant's motion to modify the preliminary injunction is denied.

 Plaintiff's Motion to Broaden the Injunction

 Plaintiff cross-moves to broaden the injunction to prohibit defendant from selling its heavyweight nylon knapsack, Style No. 9995, which allegedly infringes plaintiff's knapsack, model 7192. *fn3" The Court has already enjoined defendant from selling a lightweight version of the same knapsack. While K Mart correctly points out that there are more dissimilarities between the two bags presently in question than between K Mart's lightweight ...


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