Opinion
No. 73-1260.
Argued November 6, 1973.
Decided December 3, 1973. Certiorari Denied March 4, 1974.
Daniel F. Featherston, Jr., Boston, Mass., with whom Featherston, Homans, Klubock Griffin, Boston, Mass., was on brief, for plaintiff, appellant.
James W. Noonan, Boston, Mass., with whom Herrick, Smith, Donald, Farley Ketchum, Boston, Mass., was on brief, for defendant, appellee.
Appeal from the United States District Court for the District of Massachusetts; W. Arthur Garrity, Jr., Judge.
Before COFFIN, Chief Judge, McENTEE and CAMPBELL, Circuit Judges.
After argument and studying the briefs, we have come to the conclusion that we cannot improve on the thoughtful opinion of the district court, 358 F. Supp. 1230 (D.Mass. 1973). We therefore affirm on the basis of that opinion. We add only two comments. The first is that appellant makes the pillar of its claim for punitive damages, fees, and costs, despite absence of any proof of actual damages, our statements in the prior case, Electronics Corporation of America v. Honeywell, Inc., 428 F.2d 191, 194 (1st Cir. 1970), that material misrepresentations "will damage" and that in a two-firm market "harm is sufficiently apparent" when such misrepresentations are made. While we cannot fault appellant for seizing on this language, we do not recant. When we spoke of the inevitability of harm we were not addressing the availability of damages but of relief. Because appellee's harmful conduct was discontinued and no actual damage was shown no further relief is indicated. Our second comment is that in relying on the district court opinion, we do not indicate necessary agreement with its conclusion that palming off is not an essential element of a Lanham Act claim. We say this only because such a stance is not necessary for the decision of this appeal.
Affirmed.