Georgia-Pacific Consumer Prods. LP v. Myers Supply, Inc, CA8, Sept. 2010

GP, an industry leader in paper products, distributes paper towel holders and paper towels to commercial enterprises, as does defendant Myers.  Myers placed non-GP paper towels in GP towel holders that were leased to parties against terms and conditions in contracts requiring use of GP paper.   GP claims trademark infringement and tortious interference with business relations for the contract issue.
      In considering trademark infringement from both the standpoint of end user paper towel purchasers (who were not confused) and bathroom towel users (who generally did not care what was in the dispensers), the court went through the classic infringement test involving factors, including market factors.  The testimony from competing survey experts was discounted in favor of testimony by industry insiders who said that stuffing towel holders of one brand with paper products of a different brand was common industry practice that did not cause confusion.  A claim for tortious interference with a business relation (contract between GP and its customer) was dismissed.  Defendant wins.
     Thus, the general rule of substituting a competitor product for a trademarked product in consumer distribution as being trademark infringement was not sustained.    Once again, survey evidence was discounted after a battle of experts.   Both sides spent a lot of time, money and effort in a case that should have been settled.