Tabberone is pronounced tab ber won
not tay ber own
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Tabberone is pronounced tab ber won |
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| This information is taken directly from the court opinion. It is not taken out of context nor is it altered. |
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From John Paul Mitchell v Randalls Food Markets, 17 S.W.3d 721 (TX 2000)
The common basis of the torts of unfair competition and trademark infringement is a likelihood of consumer confusion as to the source of the goods. See Matrix Essentials, Inc. v. Emporium Drug Mart, Inc., 988 F.2d 587, 590-92 (5th Cir.1993) ; Pebble Beach Co. v. Tour 18 I, Ltd., 942 F.Supp. 1513, 1554 (S.D.Tex. 1996), aff'd as modified, 155 F.3d 526 (5th Cir.1998). "[T]he general rule is that `trademark law does not apply to the sale of genuine goods bearing a true mark, even if the sale is without the mark owner's consent.'" Id. at 590 (quoting Shell Oil Co. v. Commercial Petroleum, Inc., 928 F.2d 104, 107 (4th Cir.1991) ) (dismissing similar effort to prevent diversion of hair products from closed distribution system to retail outlet alleging trademark infringement and unfair competition under federal law). Confusion may result when one party passes off its goods as those of another. That has not happened here. "[T]he mere fact that the sale is unauthorized -- that is, without consent -- does not give rise to an infringement claim when the marked goods are genuine." Pete-N-Larry's, 862 F.Supp. at 1023. Appellees insist that there is no confusion because they are selling genuine Paul Mitchell products identical to those sold by authorized distributors and salons. To prevail, Paul Mitchell must establish that there are material differences between the products Paul Mitchell manufactures and the products that appellees sell. See id. The jury found a material difference sufficient to create consumer confusion, but we find no 736 evidence in the record to support this finding, that is, no evidence that the products sold by Randalls or Jade are anything other than genuine. |
