WINGMASTER PLUS, INC. v. STEVE MESERLIAN and TECHNICAL PRODUCTS, INC.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2144-04T32144-04T3

WINGMASTER PLUS, INC.,

Plaintiff-Respondent/

Cross-Appellant,

v.

STEVE MESERLIAN and

TECHNICAL PRODUCTS, INC.,

Defendants-Appellants/

Cross-Respondents.

___________________________________

TECHNICAL PRODUCTS, INC., and

STEVE MESERLIAN,

Third-Party Plaintiffs-

Appellants,

v.

CHERYL K. MUJICA,

Third-Party Defendant-

Respondent.

_____________________________________________________

 

Argued March 21, 2006 - Decided May 3, 2006

Before Judges Coburn, Collester and Lisa.

On appeal from the Superior Court of New Jersey,

Law Division, Bergen County, L-3314-02.

Donald P. Jacobs argued the cause for appellants/

cross-respondents (Budd Larner, attorneys;

Mr. Jacobs and Michael B. Schultz, on the brief).

Luis A. Martinez argued the cause for respondent/

cross-appellant Wingmaster Plus, Inc. and

respondent Cheryl K. Mujica (Labarbiera, Jones &

Martinez, attorneys; Mr. Martinez, on the brief).

PER CURIAM

Wingmaster Plus, Inc. ("WPI") designed and arranged for the manufacture of a tool used to install and remove wingnuts during the servicing of swimming pools. WPI and Technical Products, Inc. ("Technical") agreed that Technical would be WPI's exclusive distributor of the tool. Shortly thereafter WPI informed Technical that it had breached the agreement and terminated the relationship. Technical began manufacturing and selling its own virtually identical version of the tool. Cheryl K. Mujica is the owner of WPI and Steve Meserlian is the owner of Technical.

WPI filed its complaint in April 2002, alleging that defendants Technical and Meserlian had violated federal trademark law and had engaged in unfair competition contrary to federal law and New Jersey common law. Defendants filed a counterclaim against WPI and a third-party complaint against Mujica. They alleged breach of contract, fraud, common law unfair competition, unjust enrichment, and tortious interference with prospective business advantage. Technical's motion for summary judgment on WPI's claims was denied, while Mujica's motion for summary judgment on the claims against her was granted.

During the ensuing jury trial, the judge denied Technical's motion, made at the end of WPI's case, for involuntary dismissal of the complaint, and dismissed the counterclaim except for the counts of breach of contract and unjust enrichment. The jury found that Technical and Meserlian violated federal law by infringing on and counterfeiting WPI's trade mark, and engaged in unfair competition and unfair trade practices. The jury also found that WPI had neither breached the contract with Technical, nor been unjustly enriched. The jury set WPI's damages at $75,000.

The judge denied Technical's motions for judgment notwithstanding the verdict, or a new trial, and awarded WPI interest, $41,750 in counsel fees and costs, and injunctive relief. Technical and Messerlian appeal, seeking reversal of the judgment against them, a damages-only trial on their breach of contract claim against WPI, and a new liability-and-damages trial against WPI on their claims for fraudulent inducement and unjust enrichment. They also seek a new trial on their claims against Mujica. WPI cross-appeals, seeking treble damages under the federal trademark law and an increase in the award for attorneys' fees and costs to the amount it had requested, $128,670.77. We reverse the judgment on WPI's claims, and affirm the judgment insofar as it denied relief on defendants' affirmative claims.

I

In 1990, Mujica started a swimming pool service company. In 1991 or 1992, one of her distributors told her about a Pennsylvania company called Wingmaster. One of its tools was designed to remove stainless steel wingnuts that were attached to rubber pool plugs but that tool could not be used on the plastic wingnuts that had replaced the stainless steel ones. By 1996, the Pennsylvania company was out of business. In 1998, Mujica developed a new tool that she later called "Wingmaster Plus." It worked on plastic wingnuts and performed other functions necessary for the servicing of swimming pools.

In March 2000, Mujica met Meserlian, whose company, Technical, was a well-established distributor of pool equipment and supplies, and gave him some information about her tool. During September and October 2000, they had a number of meetings and discussions. She showed him auto-cad drawings of the tool and demonstrated how the tool worked. Although he indicated some interest, he was not then prepared to enter into a licensing agreement. Nonetheless, she gave him one of the tools. In November 2000, they attended a trade show in Florida. Mujica brought the tool, and Meserlian's customers expressed interest in it. After the show, Mujica modified the tool, and decided that she wanted to sell it in a kit that contained other tools available in the open market. The kit included a nylon holster, which Mujica designed and had manufactured. The holster was to be worn on a pool technician's belt. Mujica informed Meserlian that she was in the process of obtaining a patent for the tool. She obtained the patent on April 23, 2002. In December 2000, Mujica decided to have the tool manufactured by Alben Metals, Inc. ("Alben"), and incorporated Wingmaster Plus, Inc. On January 9, 2001, WPI and Technical signed an agreement for Technical to be "the exclusive distributor in the swimming pool industry . . . for the sale of the Product." The agreement defined the product as "a tool designed for tightening and untightening pool plugs, including rubber and slotted plugs, as well as eyeball fittings, ladder anchor wrench, and cover anchors and shell." The agreement did not mention the kit. In pertinent part, the agreement further read as follows:

2. Scope of Agreement. It is understood that this agreement does not grant any rights to either party except as expressly set forth herein. Distributor acknowledges and agrees that the Company is the exclusive owner of the entire right, title and interest in and to the Product and the technology and design used in connection herewith, and all intellectual property rights related thereto, including all patent applications filed on behalf of the Company and all trademarks, trade names and trade secrets relating to the Product, together with any and all goodwill attached to same. The Distributor further acknowledges and agrees that such proprietary rights shall remain the sole and exclusive property of the Company and nothing contained in this Agreement shall affect such rights.

. . .

3. Purchases and Payment. The Distributor shall submit purchase orders to the Company at least ten days prior to the required delivery date. The price charged to the Distributor shall be $17.00 per unit for the first 500 units of the Product purchased by Distributor and, thereafter, $15.00 per unit purchased by the Distributor. The Company shall invoice the Distributor with each order delivered and the Distributor shall pay the amounts invoiced within fifteen (15) days of receipt of the invoice except as set forth below.

The Distributor shall purchase 500 units of the Product on or about February 1, 2001. A partial payment of $10.00 per unit (total 500 units) will be due to the Company upon receipt of the invoice, and the balance of $7.00 per unit will be due within 15 days of the Distributor's sale of each unit within the first year of this Agreement.

. . .

For each unit of the Product sold by the Distributor for more than $20.00 per unit, the Distributor and the Company shall split all proceeds above $20.00 50/50.

In the last week of January 2001, Mujica and Meserlian attended a trade show in Atlantic City, which marked the unveiling of the Wingmaster Plus service tool and its kit to the northeast pool industry. WPI paid to participate, set up a booth, and took orders from pool technicians for two or three of the tools and about 150 kits, each containing the tool. Both Mujica and Meserlian were involved in taking the orders. After the show, Meserlian repeatedly asked Mujica for a list of customers who made purchases so he could ship the product to them. She did not comply, although she had started having the tool produced by Alben.

Mujica testified that sometime after February 1, 2001, Meserlian, asked for a delivery of 1000 tools. Although he claimed he only asked for 500 units, the jury was free to credit her testimony. According to her, she asked for a $20,000 deposit, which he refused, and then for a $15,000 deposit, which he also refused. She followed that course because of the size of the order and an estimated cost approximating $43,000. She also said she asked for the deposit because Meserlian had not given her a written purchase order.

Mujica acknowledged receiving a February 20, 2001, letter from Meserlian in which he said he had ordered 500 units and needed them right away. But she did not comply, she said, because she had not received a written purchase order. Their relationship continued to deteriorate. In mid-February, 2001, Meserlian measured WPI's tool and produced his own drawing of a like one, which he sent to machine shops to find out whether it was practical for him to produce it. One of those shops, Alben, sent a copy of the drawing to Mujica. On March 15, 2001, Mujica's attorney wrote to Meserlian, asserting that he was in breach of the agreement, which was therefore terminated. Thereafter, Meserlian arranged for the manufacture of approximately 900 tools, at a cost of approximately $14 per unit. The tools were made from his drawing based on his measurements of WPI's tool.

The tools are virtually identical, except that WPI's tool, which is colored silver, is engraved "Wingmaster Plus, Inc.", and Technical's tool, which was colored gold after the first fifty were made, has a glued-on tab that reads "TECHNICAL PRODUCTS CO., N. Caldwell, N.J." On March 15, 2001, WPI filed an application for federal trademark registration for its tool with the name "Wingmaster." The trademark was officially registered on September 17, 2002. Mujica said she chose the name because "it was a catchy slogan" and she "felt it described part of [her] product."

Around the end of April 2001, Mujica learned that Technical was selling its own version of the tool. In May 2001, Technical sold fifty tools to Jet-Line, a distributor. Mujica ordered a Wingmaster from the Jet-Line catalog that also contained material on her products. Although she testified that her tools were advertised in the Jet-Line catalog with the "Wingmaster" trademark, that is not quite correct. The advertising has a small picture, consisting of a black square, inside of which is a white capital "W" on top and a white capital "M" on the bottom, with the letters running into each other, and a black "+" in the middle. Next to the picture appears the designation "TM," and to the left of that designation is the corporate name, "Wingmaster Plus, Inc." In other words, the trademark "Wingmaster" only appears as part of the corporate name. She received Technical's version of the tool from Jet-Line. With the tool came a one-page document headed by Technical's corporate name, and other identifiers, that depicted the tool and described its uses. Directly below the drawing appeared these words: "(WINGMASTER) TECHNICAL PRODUCTS CO. PLUG SERVICE TOOL . . . ." The following "disclaimer" appeared at the bottom of the page:

THE WINGMASTER

Wingmaster Plus, Inc. has engaged Technical Products Company as the exclusive distributor of the Wingmaster Plus Service Tool. Many sales of the product, as well as sales leads and product education, were made by Technical Products Co.. [sic] They shipped the orders, that Technical Products had obtained, directly to service companies and distributors. Sales of the service tool to anyone in the swimming pool industry other than Technical Products is a violation of the contract, dated January 9, 2001*.

No explanation has been given to us, other than an interpretation of the contract which is simply not true, regardless of what anyone's definition of the word "is" is. The excuses given appear to be no more than a means to renege on their agreement. We have not been able to obtain the tool from Wingmaster Plus, Inc. We have, therefore, designed and manufactured an improved version of the tool.

We will continue to wait for Wingmaster Plus, Inc. to honor their agreement. Any NSPI representative who claims that Technical Products stole this product from Wingmaster Plus, Inc. is wrong.

*Copy of the contract available on request.

Meserlian testified that he placed "WINGMASTER" in parenthesis on that document as "a parenthetical reference basically to the original tool that was made, probably 1990s in Pennsylvania." He added that, "[p]eople in the industry knew the Wingmaster and even though this did more than the Wingmaster, it was basically the Wingmaster plus a lot more, so that's why she [referring to Mujica] called it the Wingmaster Plus, so when I made mine I just referred to the original Wingmaster." He stopped using this document in early May 2002 shortly after WPI served him with a copy of its complaint. He also asked Jet-Line to remove the "(Wingmaster)" designation from its catalog.

A Jet-Line representative testified that its 2002 Winterizing Catalog described Technical's tool as "Plug Removal & Installation Tool," while referring to WPI's product as the "'Wingmaster Plus' Tool Service Kit." But the 2003 Price Book once again identified Technical's Product as the "'Wingmaster' Plug Removal & Installation Tool," while continuing the designation for WPI's product indicated above. The 2003 Winterizing Catalog, however, referred to Technical's tool as the "Plug Removal & Installation Tool," while continuing the noted designation for WPI's tool. The continued use of "Wingmaster" for Technical's tools in the 2003 Jet-Line materials resulted from clerical errors committed by Jet-Line employees.

WPI spent $8,000 to have molds made to produce the tool, $10,000 on a flyer it mailed to four thousand potential customers, $7,000 for a web site, and $40,000 on advertising in 2001 and 2002. The tool cost $15 to make per unit, and WPI sold it to distributors for $22 and to end users for $30. The kit, including the tool, cost $40 and WPI sold it to distributors for $63. In 2001, WPI sold 630 kits and 108 tools. In 2002, WPI sold 682 kits and seventy tools, and in 2003, WPI sold 205 kits and twenty-four tools.

Technical sold its version of the tool to the same distributors, who included their materials under the same catalog categories. In 2001, Technical sold 235 tools, grossing $4,700; in 2002, it sold 195 tools, grossing $3,800; in 2003, it sold 55 tools, grossing $1,100. After deducting the costs of production, Technical's total net profit was $2,647.50.

WPI was an exhibitor at the 2002 Atlantic City convention. Meserlian, without authorization from WPI, signed in as "Steve Meserlian, Technical Products, Steve Meserlian, Wingmaster Plus/Technical Products." He stood within six feet of WPI's booth, telling customers that he was selling the tool and distributing literature to them respecting his version of the tool. Mujica arranged for the convention security officers to remove Meserlian. Until shortly before the trial, Meserlian continued to tell people that he was supposed to be WPI's exclusive distributor of the Wingmaster Plus.

Mujica said that the competition from Technical "affected [her] business with loss of sales for the tool," but not the kit. She explained that her sales of the tool alone amounted to one percent of her kit sales. She presented no other evidence on lost profits. If WPI had sold all the tools sold by Technical, 485, its net profit would have been somewhere between $3,395 and $7,275, taking into account the difference between the profit WPI made on sales to distributors ($7.00) and on sales to end users ($15.00). WPI did not present any witness who testified about purchasing Technical's tool believing that it was manufactured by WPI.

II

We consider first defendants' claim that the judge erred in granting summary judgment to Mujica. In their brief, defendants describe their complaint as alleging "that Mujica induced WPI's breach of contract; tortiously interfered with defendants' existing and prospective business advantage; misappropriated consideration; engaged in common law unfair competition; committed fraud; and was unjustly enriched." But in answer to the summary judgment motion, their only factual opposition was Meserlian's certification, which their brief accurately summarizes as follows:

Meserlian certified that when Mujica first showed him the tool in October 2000, he was already "fully familiar" with it because of a tool marketed as the "Wingmaster" by Wingmaster, Inc. of Collegeville, Pennsylvania. In November 2000 -- before WPI was even incorporated -- Meserlian recommended modifications that enabled the extraction of anchors. Mujica adopted the modifications. He made those recommendations in reliance upon the parties' forthcoming relationship.

Meserlian certified that he spent a great deal of time and effort marketing the product at the November 2000 Orlando convention, which was before the execution of the written agreement. Mujica disputed the accuracy of that statement.

After the Atlantic City show in January 2001, Mujica caused WPI to refuse to provide Technical Products with the tools needed to fulfill its orders. On February 12, 2001, Mujica requested a $20,000 advance payment, which was not required by the agreement; indeed, such a payment had never even been discussed.

There is nothing in Meserlian's certification that supports any of the tort theories defendants alleged. Moreover, defendants cite no cases in this portion of their brief other than Katz v. Schachter, 251 N.J. Super. 467 (App. Div. 1991), certif. denied, 130 N.J. 6 (1992), which they describe as standing for the principle that "in appropriate circumstances an individual maybe liable for misrepresentation in an allegedly corporate capacity." The brief does not identify any such misrepresentation and none appears in the record. Therefore, the judge correctly recognized that the claims against Mujica were essentially for breach of contract, and that she was not liable because the contract was between the corporations. Saltiel v. GSI Consultants, Inc., 170 N.J. 297, 309-10 (2002).

With respect to the rest of the case, the evidence submitted at the motion for summary judgment was essentially the same as that introduced at trial on those issues. Since defendants moved for judgment at trial on those claims, we will consider their arguments in that context.

Defendants contend that Technical was entitled to judgment notwithstanding the verdict on its claim that WPI breached the written contract. Their argument focuses on a factual dispute between the parties as to whether the contract permitted WPI to sell directly to end users and on WPI's demand for a deposit in response to Technical's oral order for either 500 or 1,000

of the tools. The first dispute related to the provision of the agreement that Technical would be the "exclusive distributor in the swimming pool industry." But the agreement did not define the phrase "swimming pool industry," and the jury was entitled to interpret the resulting ambiguity in WPI's favor. Moreover, defendants' arguments overlook a key provision of the agreement; namely, that Technical "shall submit purchase orders" to WPI "at least ten days prior to the required delivery date." WPI contended that the agreement called for written purchase orders, and that one of her reasons for not responding was the lack of such an order. Technical argued that since the contract did not include the word "written," his oral request was sufficient. The most reasonable construction of the agreement is that it was referring to written orders since a purchase order is normally written, as Meserlian himself admitted. At best, from Technical's side, the agreement was ambiguous on this point, and consequently presented an issue for resolution by the jury. Driscoll Constr. Co. v. N.J. Dept. of Edu., 371 N.J. Super. 304, 314 (App. Div. 2004). We see no basis for overturning the jury's resolution of this issue.

We turn next to defendants' contention that they were entitled to judgment as a matter of law on WPI's claims for infringement and counterfeiting of its federally registered trademark. Defendants are clearly correct. Under federal law a "'registered mark' means a mark registered in the United States Patent and Trademark Office . . . ." 15 U.S.C.A. 1127. A "'counterfeit' is a spurious mark which is identical with, or substantially indistinguishable from, a registered mark." Ibid.

The causes of action created by 15 U.S.C.A. 1114 are for the use without consent of a "registered mark" or "counterfeit" of a "registered mark." While there are other weaknesses in WPI's case under this statute warranting dismissal, which the parties have discussed at some length, we will limit our discussion to that necessary for disposition of the relevant claims. The following facts were not in issue. WPI did not obtain federal registration of its trademark until September 17, 2002, which was four months after it filed suit. WPI states in its brief that "there was a question of fact whether [defendants'] activities continued past September 17, 2002." However, the brief does not contain any specific statement, or citation to the record, of such activities. There is no reference at all to use or counterfeiting of WPI's trademark after that date. Since WPI did not have a federal trademark when defendants used the word "Wingmaster," defendants were entitled to judgment as a matter of law on the claims arising under 15 U.S.C.A. 1114.

Defendants assert that they were also entitled to judgment on WPI's claims of unfair competition under 15 U.S.C.A.

1125(a) and under state common law. We agree.

15 U.S.C.A. 1125 (a) provides in pertinent part as follows:

(a) Civil action.

(1) Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact which-

(A) is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person, or

(B) in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person's goods, services, or commercial activities,

shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act.

This statute "proscribes not only acts that would technically qualify as trademark infringement, but also unfair competitive practices involving actual or potential deception ." SK&F
Co. v. Premo Pharm. Labs, Inc., 625 F.2d 1055, 1066 (3d Cir. 1980). Although it proscribes passing off, it also proscribes "other competitive torts." Ibid. These include "unprivileged imitation, the imitation of any nonfunctional physical details of a competitor's product that have acquired a secondary meaning." Ibid. (emphasis added).

Unfair competition under New Jersey law is a broad concept, focusing on "fair play," and aiming "to promote higher ethical standards in the business world." Ryan v. Carmono Bolen Home for Funerals, 341 N.J. Super. 87, 92 (App. Div. 2001). The concept is "as flexible and elastic as the evolving standards of commercial morality demand." Ibid. In Sachs Furniture and Radio Co. v. Sachs Quality Stores Corp., 39 N.J. Super. 70, 85 (App. Div. 1956), Justice (then Judge) Francis explained the concept in this pertinent manner:

[P]revention of unfair competition is not circumscribed by rigid rules. In an era when the struggle in the market place for the favor of the public has become increasingly intense, equity has grown more vigilant in the search for efforts on the part of one competitor to capitalize on the good will of another, to pass off his goods as those of another, or to pirate the trade of his competitor by unfair or deceptive practices. And the pressure of its restraining hand is measured by the degree of inequitable conduct. The problem confronting us must be analyzed further in the light of these broad considerations.

And, as Justice (then Judge) Handler observed in Columbia Broadcasting Sys. Inc. v. Melody Recordings, Inc., 134 N.J. Super. 368 (App. Div. 1975), "misappropriation and tortious exploitation of another's product may constitute unfair competition without a 'palming off.'" Id. at 377 (citations omitted). Furthermore, "[p]ermissible imitation entails the imitator bringing to bear its own efforts and resources in producing its own product, although it endeavors to simulate or ape the product of another." Id. at 378 (citations omitted).

In French American Reeds Manufacturing Co., Inc. v. Park Plastics Co., 20 N.J. Super. 325, 332 (App. Div. 1952), we commented as follows on the right of one competitor to copy a competitor's product:

In the absence of such a monopoly as a patent confers, any person may reproduce an article if he can, and sell it if he does not pass it off as having been made by plaintiff and plaintiff's product has not as yet acquired a secondary meaning in the market place.

Although there was evidence in this case that WPI had obtained a patent, its complaint did not assert patent rights, which, of course, can only be determined in a federal court. Campbell v. Haverhill, 155 U.S. 610, 620, 39 L. Ed. 280, 284, 15 S. Ct. 217, 221 (1895). Nor did WPI submit any proof that defendants had copied a non-functional aspect of the tool. Consequently WPI's case did not, and cannot, rest on defendants' producing and selling a copy of the WPI product. As the Court observed in Red Devil Tools v. Tip Top Brush Co., Inc., 50 N.J. 563 (1967), "[t]he copying of an article which is not protected by a federal patent or copyright may not be prohibited as unfair competition." Id. at 569 (citing Sears, Roebuck & Co. v. Stiffel Co., 376 U.S. 225, 84 S. Ct. 784, 11 L. Ed. 2d 661 (1964), and Compco Corp. v. Day-Brite Lighting, Inc., 376 U.S. 234, 84 S. Ct. 779, 11 L. Ed. 2d 669 (1964).

However, as the Court further noted in Red Devil, supra, 50 N.J. at 570, neither Sears nor Compco prohibit "suitable steps to protect a business in the use of its trademark," or, "'in the use of their trademarks, labels or distinctive dress in the packaging of goods so as to prevent others, by imitating such markings, from misleading purchasers as to the source of the goods.'" (quoting Flexitized, Inc. v. National Flexitized Corporation, 335 F.2d 774, 781 n.4 (2d Cir. 1964), cert. denied, 380 U.S. 913, 85 S. Ct. 899, 13 L. Ed. 799 (1965).

Here the evidence showed that the labels placed on the tool by the parties were quite different, with WPI's reading "Wingmaster Plus, Inc.", and Technical's reading "TECHNICAL PRODUCTS CO., INC., N. Caldwell, N.J." WPI submitted no evidence indicating that its product had a "distinctive dress." All it showed with respect to the tools themselves was that Technical copied WPI's tool, and sold it with a stamp identifying Technical as the producer.

The only other written material on which WPI relied were the advertisement and flyer used by Technical using the word "Wingmaster" in parentheses. But those documents clearly identified Technical as the producer of its tool, and thus do not support WPI's claim of passing off.

Even if we assume that Technical's brief use of the word "Wingmaster" was questionable, and that somehow it could be considered "trade dress," which we doubt, WPI's claim would still fail because of the absence of proof of any secondary meaning. In French American, supra, 20 N.J. Super. at 334, we quoted with approval Judge Learned Hand's definition of secondary meaning in Crescent Tool Co. v. Kilborn & Bishop Co., 247 F. 299, 300-301 (2d Cir. 1917):

The cases of so-called 'nonfunctional' unfair competition . . . [all] presuppose that the appearance of the article, like its descriptive title in true cases of 'secondary' meaning, has become associated in the public mind with the first comer as manufacturer or source, and, if a second comer imitates the article exactly, that the public will believe his goods have come from the first, and will buy, in part, at least, because of that deception. Therefore it is apparent that it is an absolute condition to any relief whatever that the plaintiff in such cases show that the appearance of his wares has in fact come to mean that some particular person--the plaintiff may not be the individual known--makes them, and that the public cares who does make them, and not merely for their appearance and structure. It will not be enough only to show how pleasing they are, because all the features of beauty or utility which commend them to the public are by hypothesis already in the public domain. The defendant has as much right to copy the 'nonfunctional' features of the article as any others, so long as they have not become associated with the plaintiff as manufacturer or source. The critical question of fact at the outset always is whether the public is moved in any degree to buy the article because of its source and what are the features by which it distinguishes that source. Unless the plaintiff can answer this question he can take no step forward; no degree of imitation of details is actionable in its absence.

We also noted in French American, supra, that the "ultimate test of secondary meaning must always remain whether plaintiff's product in its distinctive trade dress has become broadly known to the public as indicating a certain origin," 20 N.J. Super. at 338, and that "[t]he best direct evidence of such secondary meaning [is] . . . the testimony of the ultimate consumers . . . and jobbers and retailers." Id. at 339. As in French, where we affirmed judgment against plaintiff, there is no relevant evidence here from distributors or consumers of secondary meaning. Therefore, we reject WPI's unfair competition claims.

Defendants arguments regarding the loss of their claims for unjust enrichment and fraud in the inducement are without sufficient merit to warrant discussion in a written opinion,

R. 2:11-3(e)(1)(E), and the cross-appeal is moot.

The judgment rejecting defendants' claims is affirmed, and the judgment in favor of WPI is reversed.

 

(continued)

(continued)

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A-2144-04T3

May 3, 2006