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Dawn Donut Company, Inc. (Dawn) (plaintiff) sold doughnut mix wholesale. Dawn had a federally registered trademark under the Lanham Trade-Mark Act (the Act) for “Dawn,” which it licensed to retail bakeries. Hart’s Food Stores, Inc. (Hart) (defendant) sold doughnuts retail around Rochester, NY, using the “Dawn” mark. Hart did not know about Dawn’s trademark. Dawn sued for infringement and asked the court to enjoin Hart’s use of the mark under § 1114 of the Act. Hart asserted that Dawn had abandoned the mark, because Dawn had not used it in the Rochester area in thirty years. Hart also counterclaimed, seeking to cancel Dawn’s registration for Dawn’s inadequate control of licensees’ use of the mark. At trial, evidence showed that Dawn’s sales representative had seen food marked “Dawn” at Hart while there representing other companies. The representative also visited and had the opportunity to inspect licensees’ operations. The district court dismissed the complaint and counterclaim. Both parties appealed to the United States Court of Appeals for the Second Circuit.
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