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15.18 Derivative Liability—Inducing Infringement

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15.18 DERIVATIVE LIABILITY—INDUCING INFRINGEMENT

A person is liable for trademark infringement by another if the person intentionally induced another to infringe the trademark.

The plaintiff has the burden of proving each of the following by a preponderance of the evidence:

1. [Name of direct infringer] infringed the plaintiff’s trademark;

2. the defendant intentionally induced [name of direct infringer] to infringe plaintiff’s trademark; and

3. the plaintiff was damaged by the infringement.

If you find that each of the elements on which the plaintiff has the burden of proof has been proved, your verdict should be for the plaintiff. If, on the other hand, the plaintiff has failed to prove any of these elements, your verdict should be for the defendant.

Comment

Regarding liability for inducing another to infringe a trademark, see Inwood Lab. v. Ives Lab., 456 U.S. 844, 853–54 (1982) ("[I]f a manufacturer or distributor 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, the manufacturer is contributorily responsible for any harm done as a result of the deceit [by the direct infringer]."). See also Lockheed Martin Corp. v. Network Solutions, Inc., 194 F.3d 980, 983–84 (9th Cir.1999) (one branch of contributory infringement occurs when defendant "intentionally induces a third party to infringe the plaintiff’s mark"); Sealy, Inc. v. Easy Living, Inc., 743 F.2d 1378, 1382 (9th Cir.1984) (One who intentionally induces another to infringe a trademark or supplies, knowing or having reason to know the materials supplied will be used to infringe a trademark, is contributorily liable for trademark infringement.).