"Use" is neither a glitch in the Lanham Act nor a historical relic.1954), and L'Oreal has not asked us to revisit the subject, we press forward. Because some old cases say that Illinois law supports punitive awards in trademark cases, Aladdin Mfg. The parties have been of no greater assistance. The district court found a punitive award authorized by the law of Illinois without explaining where one finds such authorization. Barto Petroleum Corp., 858 F.2d 103 (2d Cir. Punitive damages are problematic because the Lanham Act, although providing for the trebling of compensatory damages, forbids other penalties. Believing at the time that L'Oreal's net worth was $20 million, the court opined that an award of 5% of this sum was necessary to deter such conduct in the future. The district court found that L'Oreal had wilfully infringed ZHD's mark and that "its conduct before and during the litigation ha been oppressive and deceitful." 9 U.S.P.Q.2d at 1979. ![]() The final $1 million of the award was explicitly punitive.Because the mark was not registered for use in conjunction with hair products, any knowledge L'Oreal may have had of ZHD's plans is irrelevant. ZHD did not, however, have superior rights in the mark as applied to hair products, because it neither marketed such nor registered the mark before L'Oreal's use. The district court construed L'Oreal's knowledge of ZHD's use of ZAZU for salon services as knowledge "of superior rights in the mark." 9 U.S.P.Q.2d at 1978. ZHD made first use of ZAZU in connection with hair services in Illinois, but this does not translate to a protectable right to market hair products nationally. Registration itself establishes only a rebuttable presumption of use as of the filing date. A statute granting no rights in bare registrations cannot plausibly be understood to grant rights in "intents" divorced from either sales or registrations. Just as an intent to buy a choice parcel of land does not prevent a rival from closing the deal first, so an intent to use a mark creates no rights a competitor is bound to respect. Even under the 1988 amendments (see note †), which allow registration in advance of contemplated use, an unregistered plan to use a mark creates no rights. Intent to use a mark, like a naked registration, establishes no rights at all. At oral argument ZHD suggested that L'Oreal's knowledge of ZHD's plan to enter the hair care market using ZAZU establishes ZHD's superior right to the name. ZHD applied for registration of ZAZU after L'Oreal not only had applied to register the mark but also had put its product on the market nationwide.ZHD offered no evidence to allow a reasonable estimate that it would have made $100,000 from its nascent products had L'Oreal not sold zany hair colors under the ZAZU mark. New England Apple Products Co., 969 F.2d 552 (7th Cir. Allowance for uncertainty is one thing, see Grove Fresh Distributors, Inc. Compensatory damages must rest on "a just and reasonable estimate of the damages based on relevant data". 1989) Boxhorn's Big Muskego Gun Club, Inc. Although uncertainty created by wrongful acts does not insulate the wrongdoer from liability, "people who want damages have to prove them, using methodologies that need not be intellectually sophisticated but must not insult the intelligence." Schiller Schmidt, Inc. The district court brushed aside the lack of proof on the rationale that "the speculation which is inherent in the award of damages to plaintiff was knowingly and intentionally brought upon defendant by itself." 9 U.S.P.Q.2d at 1979. Nothing but conjecture supports a conclusion that ZHD could have made $4 per bottle on 25,000 bottles. ![]() At the same time the statute was revised to provide that "`use in commerce' means the bona fide use of a mark in the ordinary course of trade, and not made merely to reserve a right in a mark." 15 U.S.C. Filing such an "intent-to-use" application establishes priority as of the date of filing (except as against those already using the mark), but a statement of actual use must be filed within 6 months, which may be extended to 24.
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