Opinion · Court of Appeals for the Fifth Circuit

Penn Fishing Tackle Mfg. Co. v. Paul Pence and Ken A. MacPike Individually and D/B/A Penco Tackle Company

505 F.2d 657

Type
Opinion
Court
Court of Appeals for the Fifth Circuit
Jurisdiction
Federal
Date
1974-12-20
Topic
general

PER CURIAM: Plaintiff-appellee brought suit alleging that defendant’s use of the name “Penco” on its fishing equipment infringed plaintiff’s rights in its trademark “Penn.” After a non-jury trial, the district court found no infringement. We affirm. Our inquiry is limited to whether the lower court’s finding is “clearly erroneous.” Rule 52(a) Federal Rules of Civil Procedure. The trial court applied the proper legal test, whether úse of the allegedly infringing mark is likely to confuse consumers as to the source of the product. American Foods, Inc. v.

Citator

UpLaw has not yet analyzed Penn Fishing Tackle Mfg. Co. v. Paul Pence and Ken A. MacPike Individually and D/B/A Penco Tackle Company. The absence of a flag is not a finding that it is good law.

Cited by
5 opinions
PENN FISHING TACKLE MFG. CO. v. PENCE,505 F.2d 657(5th Cir. 1974)
PENN FISHING TACKLE MFG. CO., PLAINTIFF-APPELLANT, v. PAUL PENCE AND KEN A.
MacPIKE, INDIVIDUALLY AND D/B/A PENCO TACKLE COMPANY, DEFENDANTS-APPELLEES.
No. 74-1182.
United States Court of Appeals, Fifth Circuit.
December 20, 1974.
Lynn C. Higby, Panama City, Fla., Zachary T. Wobensmith, II, Zachary T. Wobensmith, III, Philadelphia, Pa., for plaintiff-appellant.

Joe J. Harrell, Norton T. Bond, Pensacola, Fla., for defendants-appellees.
Appeal from the United States District Court for the Northern District of Florida.
Before BROWN, Chief Judge, and BELL and MORGAN, Circuit Judges.
PER CURIAM:
[1] Plaintiff-appellee brought suit alleging that defendant's use of the name "Penco" on its fishing equipment infringed plaintiff's rights in its trademark "Penn." After a non-jury trial, the district court found no infringement. We affirm.

[2] Our inquiry is limited to whether the lower court's finding is "clearly erroneous." Rule52(a) Federal Rules of Civil Procedure. The trial court applied the proper legal test, whether use of the allegedly infringing mark is likely to confuse consumers as to the source of the product. American Foods, Inc. v. Golden Flake, Inc.,312 F.2d 619(5th Cir. 1963). The evidence consisted largely of conflicting testimony by each party's witnesses as to whether such confusion was likely. The district judge rested his finding of no infringement not only on his evaluation of this testimony, but also on the lack of direct competition between the partiesPage 658and the visual dissimilarity of the marks. We cannot say he was clearly erroneous in so ruling, and the judgment is therefore

[3] Affirmed.