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SHAKESPEARE CO. v. SILSTAR CORP. OF AMERICA, INC.

No. 92-2311.

9 F.3d 1091 (1993)

SHAKESPEARE COMPANY, Plaintiff-Appellant, v. SILSTAR CORPORATION OF AMERICA, INCORPORATED, Defendant-Appellee.

United States Court of Appeals, Fourth Circuit.

Decided November 15, 1993.

Attorney(s) appearing for the Case

Jack Lewis Renner, Renner, Kenner, Greive, Bobak, Taylor & Weber, Akron, OH, argued (Reese Taylor, Sylvia Petrosky, Renner, Kenner, Greive, Bobak, Taylor & Weber, Akron, OH; James M. Brailsford, III, Frank R. Ellerbe, III, Robinson, McFadden & Moore, Columbia, SC, on the brief), for plaintiff-appellant.

Francis Morris Pinckney, Shefte, Pinckney & Sawyer, Charlotte, NC, argued (William C. Cleveland, Haynsworth, Marion, McKay & Guerard, Charleston, SC, on the brief), for defendant-appellee.

Before WIDENER and NIEMEYER, Circuit Judges, and CHAPMAN, Senior Circuit Judge.

OPINION

CHAPMAN, Senior Circuit Judge:

This appeal presents an issue of first impression for this court: whether a district court considering cancellation, pursuant to § 37 of the Lanham Act (15 U.S.C. § 1119 (1988)), of a trademark that has been registered more than five years, and is incontestable pursuant to 15 U.S.C. § 1065 (1988), can order cancellation on the ground that the trademark is found to be functional, even though functionality...

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