evidence which could be said to establish tampering or repackaging. As to the photograph of a garbage can containing discarded packaging from some of plaintiff's competitors, we conclude that while this might indicate malfeasance in defendant's dealing with those manufacturers, nothing in the photograph suggests anything with respect to plaintiff's product. Finally, the invoices showing sales of individual solutions to Vision Express, apparently represent sales of unopened boxes containing twelve bottles of solution packaged precisely in the manner in which they were sold by plaintiff (Def. Ex. 10, Def. Ex. 7 PP 18 and 26), which does not suggest either tampering or repackaging. Thus we again conclude that plaintiff has "produced no credible or sufficiently probative evidence to support its claim" of tampering or repackaging.
Having concluded that it has not been established that defendant disassembled plaintiff's product, we turn to the question of whether defendant's sale to retail outlets of products which plaintiff claims were not in compliance with FDA regulations constituted a violation of plaintiff's "right to control the quality of goods manufactured and sold under the holder's trademark." In the first place, we note that plaintiff's claim that the professional solutions are not adequately labelled for retail sale seems to be belied by the fact that the Combination Pack, which concededly bore less information than the Professional Solutions, received FDA approval and was placed by plaintiff into the retail market. In addition, we find that this question seems to be disposed of by the above-mentioned section of the pertinent FDA regulations, 21 C.F.R. § 801.4, which requires that if a manufacturer knows that "a device introduced into interstate commerce by him is to be used for conditions purposes or uses other than the ones for which he offers it, he is required to provide adequate labeling for such device which accords with such other uses to which the article is to be put." Finally, as the memoranda from plaintiff to its distributors, supra, make clear, plaintiff had for a long time been well aware that its professional products were being used for retail sales, a different purpose than the one for which it had been introduced into interstate commerce. Plaintiff's threat to "exclude the offending retailers from the product liability coverage we provide for all Boston products" (Pl.Exh.11, Apr.1989 Mem.) underscores the fact that it had considered the worst possible consequences of this unintended use and took no legal action to stop it until the initiation of this lawsuit in December of 1991.
B. Unauthorized Distribution
The majority directed us to consider whether or not plaintiff's clear expression of its intent to restrict sales of the professional solutions by way of the above-mentioned restrictive labelling made defendant liable for trademark infringement due to unauthorized distribution. 975 F.2d at 64. Having so considered, we conclude that it did not. The majority did not cite, nor has our research found, a single Second Circuit case in which trademark infringement was said to have been established in a situation where a plaintiff, when drafting a contract with its distributors, had not taken the trouble to proscribe the conduct which it later contended was in violation of such contract. Compare, e.g. El Greco Leather Products Co. v. Shoe World, Inc. (2d Cir.1986) 806 F.2d 392, cert. denied, 484 U.S. 817, 98 L. Ed. 2d 34, 108 S. Ct. 71 (1987) (trademark infringement found where defendant violated contractual provision specifically barring any sale of product absent inspection); Original Appalachian Artworks v. Granada Electronics (2d Cir.) 816 F.2d 68, cert. denied, 484 U.S. 847, 98 L. Ed. 2d 99, 108 S. Ct. 143 (1987) (trademark infringement found where defendant violated contractual restriction limiting territory within which product could be sold).
We note that the 6th Circuit found unfair competition in a case with facts analogous to the one before us, Clairol, Inc. v. Boston Discount Ctr., Inc (6th Cir. 1979) 608 F.2d 1114, 1120 (retail sale of salon products which omitted certain instructions and labelling constituted unfair competition), as some other courts faced with similar facts have done, see Clairol, Inc. v. Carlton Drug, Inc. (1st Dep't. 1967) 27 A.D.2d 652, 278 N.Y.S.2d 177; Clairol, Inc. v. Cosmetics Plus (1974) 130 N.J. Super. 81, 325 A.2d 505. However, we find more convincing the reasoning of the Supreme Judicial Court of Massachusetts in Clairol, Inc. v. Cody's Cosmetics, Inc. (1967) 353 Mass. 385, 231 N.E.2d 912. In that case, the court refused to grant injunctive relief prohibiting defendant retail drug store from selling "professional use" bottles, stating its reasons as follows (emphasis added):
Clairol presses upon us the potential risks to its business reputation from uninstructed home use of its "Professional Use Only" product . . . Clairol, it seems to us, largely seeks to protect what has been an effective marketing and advertising devise . . . " 353 Mass. at 393, 231 N.E.2d at 917.
we see no basis for treating . . . Clairols labels on its "Professional Use" bottles . . . as binding in equity upon non-professional purchasers . . . who have no direct contractual relationship with Clairol. 353 Mass. at 394, 231 N.E.2d at 918.