Dieter v. B & H Industries of Southwest Florida

880 F.2d 322 (1989)

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Dieter v. B & H Industries of Southwest Florida

United States Court of Appeals for the Eleventh Circuit
880 F.2d 322 (1989)

Facts

Richard Dieter was the president and sole shareholder of Richard A. Dieter General Contractor, Inc. (collectively, Dieter) (plaintiffs). Dieter manufactured and sold wooden window shutters under the registered trademark “Shutterworld” in the region surrounding Tampa, Florida. Dieter’s shutters were primarily suitable for interior, decorative use. Having been in use for more than five years after registration, Dieter’s mark had acquired incontestable status. B & H Industries of Southwest Florida, Inc. (B&H) (defendant) sold exterior, insulated, roll-down security shutters in the area of Fort Meyers, Florida, approximately 120 miles south of Tampa. B&H’s shutters were designed for exterior use as protection against weather and intruders. B&H obtained Florida registration of a “Shutterworld” trademark that was similar to Dieter’s trademark. Dieter sued B&H for trademark infringement. After a bench trial, the court found that Dieter’s mark was valid and enforceable but that there was no infringement because no likelihood of confusion existed. In so doing, the district court evaluated the strength of Dieter’s mark without reference to its incontestable status and determined that the mark was merely descriptive. Dieter appealed.

Rule of Law

Issue

Holding and Reasoning (Howard, J.)

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