Dueling Accordians

Trademark law comes to the squeeze box. Last week, Judge Posner of the Seventh Circuit authored an opinion holding that both compensatory damages and statutory damages for infringement of a registered trademark are not both available to the prevailing trademark owner. The plaintiff must elect between one or the other.

This case involves a dispute between two branches of the renown Gabbanelli accordian family. One branch makes accordians under the Gabbanelli mark in Castelfidardo, Italy. The other branch operates under the mark Gabbanelli Accordians in Houston. The Houston branch sued the Italians for various things, including infringement of its U.S. registered trademark. The trial court awarded damages to the Houston Gabbanelli's of both lost profits on the sale of accordians plus statutory damages.

On appeal, Judge Posner acknowledged that while it is possible to recover both compensatory damages and statutory damages in the same case under the Lanham Act when separate infringement claims are combined into one proceeding, here the plaintiff must make an election when the compensatory damages and the statutory damages both pertain to the same accordians.

Of note, the 19th annual Cotati Accordian Festival takes place on August 22-23, 2009 at La Plaza Park in Cotati, California (in the wine country north of San Francisco, and south of Santa Rosa). The festival includes many accordian events, including a polka tent and the annual "Lady of Spain" ring.