Plaintiff sold BLACK ICE car fresheners. Defendant sold a ‘dual scent’ car freshener – the package had a dial that allowed the user to choose between two scents – MIDNIGHT BLACK or ICE STORM. The two names appeared as MIDGNIGHT BLACK ICE STORM (See above). Defendant was very aware of plaintiff and its BLACK ICE products. One employee suggests getting as close to BLACK ICE as possible lawfully. The Second Circuit states “Rarely does an infringement case reveal such explicit evidence of bad faith.” I don’t know if the Court is excluding counterfeiting from its definition of infringement, but even if it is, that statement seems a bit much. Summary judgment in favor of defendant reversed and remanded.

bonus query: Why didn’t defendant reverse the product name to ICE STORM MIDNIGHT BLACK?

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