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Tabberone is pronounced tab ber won |
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| Contributory Infringment |
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The Lanham Act contains no explicit language allowing for a cause of action of contributory infringement or vicarious liability. The doctrine of
contributory trademark infringement was set out in Inwood Labs., Inc. v. Ives Labs., Inc, 456 U.S. 844, 855 (1982).
The Supreme Court interpreted that statute to imply such a cause of action and enunciated what remains the standard for contributory trademark infringement.
The Court stated that a party which "intentionally induces another to infringe a trademark, or if it continues to supply its product to one whom it knows or has reason
to know is engaging in trademark infringement … is contributorially responsible for any harm done as a result of the deceit."
see Inwood Labs., 456 U.S. at 854. The determination of contributory infringement depends upon a defendant's intent and knowledge of the wrongful activities.
David Berg & Co. v. Gatto Int'l Trading Co., 884 F.2d 306, 311 (7th Cir. 1989). See also Restatement (Third) of Unfair Competition
§ 26 (1985) (imposing liability when the actor intentionally induces a third person to engage in the infringing conduct, or the actor fails to take reasonable precautions
against the occurrence of a third person's infringing conduct in circumstances in which the infringing conduct can be reasonably anticipated).
The 9th Circuit discussed contributory infringement in Fonovisa Inc. v. Cherry Auction, 76 F.3d 259 (9th Cir. 1996). This excerpt has footnotes 28 through 30 where the court discussed the issue. More from Fonovisa Inc. v. Cherry Auction, 76 F.3d 259 (9th Cir. 1996). This excerpt has footnotes 28 through 31 where the court discussed the issue. The New York City Bar did a report in 2003 titled Online Auction Sites And Trademark Infringement Liability in 2003. This is a 23 page document that covers more areas than the subject of this page. We have excerpted the relevant sections for those interested in contributory infringement. Those wanting to read the entire PDF format document, click here.
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