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The U.S. Supreme Court said June 26 that it will review a 6thU.S. Circuit Court of Appeals ruling in a dispute between owners of thetrademarks “WindBuster” and “WindMaster” — both used toidentify traffic sign stands.� ( TrafFIXDevices Inc. v. Marketing Displays Inc., No. 99-1571). The high court granted a petition for writ of certiorari filed byTrafFIX Devices Inc. The Sixth Circuit ruled Dec. 29 that a district court properlyfound that TrafFIX Device’s�”WindBuster” mark infringes Marketing Display Inc.’s (MDI)”WindMaster” mark. The court also reversed summary judgment forTrafFIX on claims of trade dress infringement and unfair competition, citingunresolved factual issues. MDI manufactures and sells a wind-resistant, mobile traffic signstand under the name WindMaster, which was registered as a trademark in July1977.� The sign design is dependent inpart on patents for a dual-spring base; the last of the relevant patentsexpired in May 1989.� After the patents expired, TrafFix owner Jack Kulp sent an MDIsign to Korea to be reverse-engineered to produce a product to be marketed incompetition with the WindMaster.� Hebegan selling the sign in the fall of 1994; he adopted the WindBuster name inmid-1995 after having a patent attorney conduct a trademark search to determinethe availability of the mark for use on traffic signs. Based on the attorney’s recommendations,TrafFix applied to register the mark; the mark was registered in January 1996. INFRINGEMENT ALLEGED MDI sued in the U.S. District Court for the Eastern District ofMichigan in July 1995, asserting claims for trademark infringement, trade dressinfringement and unfair competition; the court entered summary judgment for MDIon the trademark claim in January 1997 and enjoined TrafFix’s use of theWindBuster mark.� The court alsodismissed an antitrust counterclaim asserted by TrafFix. In June 1997, the court entered summaryjudgment for TrafFix on the trade dress and unfair competition claims. The parties filed cross-appeals. Affirming on the trademark infringement claim, the Sixth Circuitheld that the lower court did not err in finding a likelihood of confusionbetween the WindMaster and WindBuster marks. The panel found that the MDI mark is strong, the parties’products are indisputably related, the marks are very similar in appearance andsound and the parties use similar trade channels. However, the panel reversed on the trade dress issue, holdingthat MDI has raised factual issues on secondary meaning. The panel cited deposition testimony ofTrafFix employees and a former MDI manager that they could recognize an MDIsign while driving on a highway; testimony by 40 purchasers about theirassociation of the WindMaster trade dress with MDI; the length of time duringwhich MDI has used its trade dress; the amount and manner of advertising usedby MDI; and the fact that TrafFix intentionally copied the trade dress. The panel found further that the lower court erred as a matter oflaw in concluding that the MDI trade dress is functional in nature. MDI is represented by Jeanne-Marie Marshall of Reising,Ethington, Barnes, Kisselle, Learman & McCullock in Troy, Mich., and IrwinAlterman of Kemp, Klein, Umphrey & Endelman in Troy. TrafFIX is represented by John A. Artz ofLyon & Artz in Southfield, Mich. �; Copyright 2000 Mealey Publications, Inc.

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