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CONOPCO, INC. v. ROSA DISTRIBS.

June 30, 1997

CONOPCO, INC. d/b/a LEVER BROTHERS COMPANY and LEVER INVESTMENTS CORPORATION, Plaintiffs,
v.
ROSA DISTRIBUTORS, EMPIRE DISTRIBUTORS, G.F.I., INC., LOUIS N. ROSANOVA, JOHN ROSA, JOHN E. COLLETTA, FRANK GRECO, JR., DELRAY FARMS, INC., CENTRAL PARK FOODS, INC., NORTH GRAND PRODUCE, INC., and NAPCO GRAPHICS CORPORATION, Defendants.



The opinion of the court was delivered by: PLUNKETT

 In this trademark infringement case, defendant Napco Graphics Corporation ("Napco") has moved for summary judgment on the grounds that it is an "innocent printer" under 15 U.S.C. § 1114(2)(a). Because this Court finds that a genuine issue of material fact remains, the motion is denied.

 Facts

 Conopco, Inc., d/b/a Lever Brothers Company and Lever Investments Corporation ("Lever Brothers") is the exclusive domestic user of the SNUGGLE trademark in the sale of fabric softener. The trademark and the relevant trade dress appear on SNUGGLE labels as follows:

 [SEE PHOTOGRAPH IN ORIGINAL]

 Lever Brothers asserts that the trademark and trade dress have acquired a high degree of fame and are well-known to the consuming public.

 Napco prints labels. In September 18, 1996, it was contacted by Packaging Network, Inc. ("Packaging Network") for price quotes for labels printed to certain specifications in various quantities. Packaging Network is a broker, and Napco understood that the labels would be prepared for a third-party. During the initial and subsequent conversations Packaging Network's client was not identified, but Napco's employees were told that the product involved was fabric softener. The order was for labels for "Nuggle" fabric softener. After several communications with both Packaging Network and both Frank and John Rosa, Packaging Network's clients, the proofs prepared by Napco were approved, and Napco printed 16,000 "Nuggle" labels. The labels appeared as follows:

 [SEE PHOTOGRAPH IN ORIGINAL]

 Discussion

 Fed. R. Civ. P. ("Rule") 56(c) allows this Court to grant summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." In considering the evidence submitted by the parties, the court may not weigh it or determine the truth of asserted matters. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). All facts must be viewed and all reasonable inferences drawn in the light most favorable to the non-moving party. Transamerica Ins. Co. v. South, 975 F.2d 321, 327 (7th Cir. 1992).

 Napco has moved for summary judgment on the ground that as the printer of the "Nuggle" labels it is an innocent infringer under Section 32(2)(a) of the Lanham Act ("Section 32(2)(a)"), 15 U.S.C. § 1114(2)(a), which limits the relief available against it to an injunction against future printing. That statute states, in pertinent part:

 
Where an infringer or violator is engaged solely in the business of printing the mark or violating matter for others and establishes that he or she is an innocent infringer or innocent violator, the owner of the right infringed or person bringing the action under Section 1125(a) of this title shall be entitled as ...

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