ORDER FOR JUDGMENT.

GADBOIS, District Judge.

I.

Six years ago, four circuit breaker manufacturers, Square D Company, General Electric Company, Underwriters Laboratories Inc., and plaintiff Westinghouse Electric Corporation ("Westinghouse"), filed forty cases with this Court, suing several circuit breaker reconditioners for trademark infringement, unfair competition, and state law causes of action.

Westinghouse's case against defendants Pencon International, Inc., General Magnetics/Electric Wholesale and Charley Contreras ("Pencon Defendants"), Panelboard Specialties Wholesale Electric, Inc. and Jaime A. Contreras ("Panelboard Defendants"), AC Circuit Breaker-Electrical Supply and Joe A. Contreras ("AC Circuit defendants"), and General Circuit Breaker Electric Supply, Inc., Xavier Contreras, and Jaime A. Contreras ("GCB defendants") has been tried to a jury, and is now near a conclusion.

Many other pieces of the puzzle have yet to be tried, including defendants' previously severed antitrust counterclaims against Westinghouse, and ten separate cases involving plaintiffs Square D Company, General Electric Company, and Underwriters Laboratories Inc. Under the Local Rules of the Central District of California, these cases will almost certainly be tried by another judge.

A. Background

Westinghouse is a major manufacturer and seller of molded case circuit breakers. Each breaker has a label bearing the Westinghouse trademark and listing information about the breaker's electrical characteristics. Some of these labels are permanent metal plates or ink-stamps; the rest are paper.

Defendants recondition and resell used Westinghouse circuit breakers. Occasionally, reconditioning requires minimal effort. At other times, defendants must replace certain components with new Westinghouse parts. Before 1988, defendants routinely replaced the breakers' seals, and also replaced faded or otherwise illegible paper labels. Westinghouse employees gave defendants some replacement labels; defendants printed the remainder themselves, or gave the job to a professional printer.

Defendants did not add a notation to any of their breakers indicating that the breakers were reconditioned. Rather, the labels on the reconditioned breakers contained the same information as the original Westinghouse labels, including the Westinghouse trademark.

In 1988, Westinghouse filed suit against defendants, asserting claims for (1) trademark counterfeiting under section 32 of the Lanham Act; (2) unfair competition under section 43 of the Lanham Act; (3) unfair competition under the California Business and Professions Code; (4) unfair competition under the California common law; and (5) trademark dilution under California law.

Defendants did not deny selling reconditioned breakers with the Westinghouse mark and failing to label them as reconditioned. However, defendants maintained that they had not intended to deceive anyone and that Westinghouse knew, or certainly should have known, that defendants were selling reconditioned breakers bearing the Westinghouse mark. In fact, Westinghouse itself was one of defendants' major clients, and resold defendants' reconditioned circuit breakers without labeling them "reconditioned." Defendants asserted numerous affirmative defenses, including equitable estoppel, laches, acquiescence, and unclean hands. Defendants also contended that Westinghouse improperly sought to drive them out of business, and filed antitrust counterclaims.

B. The Trial

After Westinghouse narrowly survived a motion for summary judgment based on the affirmative defenses, a jury heard the liability phase of the case. Since defendants did not deny reconditioning and reselling breakers bearing the Westinghouse mark without designating them as reconditioned, two issues dominated the trial: 1) whether the reconditioned breakers were likely to be confused with new breakers; and 2) the affirmative defenses.

Westinghouse appeared to prevail on the first issue, demonstrating that the defendants' reconditioned breakers might be confused with new breakers. However, the evidence solidly supported defendants' affirmative defenses. They demonstrated that Westinghouse was, or should have been, abundantly aware that defendants sold reconditioned Westinghouse breakers bearing the Westinghouse mark without labelling them as reconditioned — as defendants repeatedly emphasized, Westinghouse itself was one of defendants' major customers. Westinghouse noted, however, that there was virtually no evidence that Westinghouse knew that defendants were in fact copying Westinghouse labels, rather than using original labels. At trial, Westinghouse suggested that copying labels was not only evidence of bad intent, but also a wrong in and of itself.

Although defendants admitted making duplicate Westinghouse labels, they steadfastly denied any wrongful intent. They argued that they did not bother labelling their breakers as "reconditioned" because defendants were well-known in the market — "we're a junk shop. People know who we are." Defendants also said that they believed that any purchaser of a reconditioned breaker would recognize it as such. As one defendant, Charley Contreras described it: "It's like if you're an old man, you can put on all the make-up you want, but you're not fooling anybody but yourself." Furthermore, defendants noted that if they were trying to deceive the public, they were doing an absurdly inept job — they not only often told customers when asked that the breakers were reconditioned, but also widely advertised themselves as breaker reconditioners.

According to defendants, replacing worn labels was not an effort to deceive, but a necessary part of reconditioning. After all, as even Westinghouse concedes, its labels do more than identify Westinghouse as the manufacturer — they provide critical information regarding the breaker's electrical characteristics. Various electrical codes and standards require breakers to bear such information, and copying Westinghouse's labels was simply the easiest way to do it.

Lastly, in support of its unclean hands defense, defendants demonstrated that after purchasing reconditioned breakers from defendants, Westinghouse itself re-sold them directly without relabelling them as reconditioned.

C. The Jury's Verdict Forms

On July 15, 1993, the jury returned its first verdict form, indicating that plaintiff had failed to prove any of its state law claims or its Lanham Act unfair competition claim, 15 U.S.C. § 1125. However, the verdict form indicated that plaintiff had proven its Lanham Act "trademark counterfeiting" claim, 15 U.S.C. § 1114, and that defendants "intentionally use[d] counterfeits of [some] of plaintiff's trademarks, knowing them to be counterfeits." With regard to the affirmative defenses, the verdict form indicated that affirmative defenses applied to all of plaintiff's claims except the § 1114 claim.

This result appeared fatally inconsistent, as a claim under § 1114 should have established claims under § 1125 and also under the California Business Professions Code.

Unwilling to risk improperly coercing a verdict, this Court did not inform the jury that its verdict was inconsistent. Instead, this Court asked it to return the following day, so that this Court and the parties could digest the verdict overnight and determine whether the jury needed to answer any further questions. The next day, after the jury had assembled in the jury room but before it had entered the courtroom, the jury sent a note to the bailiff indicating that it had made an error in transposing its results onto the verdict form, and asked if it could make corrections and submit a revised verdict form.

This Court obliged, and the jury submitted a revised verdict form, which indicated that plaintiff had proved both its § 1114 claim and its § 1125 claim, as well as its claim for unfair competition under the California Business Professions Code. The verdict form continued to indicate that the jury found that affirmative defenses applied to all of plaintiff's claims except for the § 1114 claim.

Although the § 1114, § 1125, and California Business Professions Code claims were now consistent, this Court was perplexed by the jury's conclusions on the affirmative defenses. Defendants had produced extensive and highly persuasive evidence that Westinghouse knew, or should have known, that defendants were using the Westinghouse mark on reconditioned breakers without designating them as reconditioned. This evidence clearly justified the jury's finding that affirmative defenses applied to Westinghouse's § 1125 claim. Ordinarily, this evidence also should have mandated the same result on the § 1114 claim, since a § 1125 claim completely subsumes a § 1114 claim. See, e.g., Inwood Laboratories, Inc. v. Ives Laboratories, Inc., 456 U.S. 844, 859, 102 S.Ct. 2182, 2191, 72 L.Ed.2d 606 (1982); James Burrough Ltd. v. Sign of Beefeater, Inc., 540 F.2d 266, 274 n. 16 (7th Cir. 1976); American Exp. v. American Exp. Limousine Serv., 772 F. Supp. 729, 732 (E.D.N.Y. 1991); The Coca-Cola Company v. Cahill, 350 F. Supp. 1231, 1233 (W.D.Okla. 1972), aff'd, 480 F.2d 153 (10th Cir. 1973). See also J. Thomas McCarthy, McCarthy on Trademarks, §§ 2.02, 2.03 (1992) (hereinafter "McCarthy").

Since the parties had agreed to try damages to the Court, and further intervention would seriously suggest coercion of a different verdict, this Court excused the jury and took evidence on damages. This Court also asked the parties to address the issue of verdict inconsistency and heard oral argument on the matter.

II.

Now that the inconsistency issue has been thoroughly briefed and argued, the case comes into clear focus. The jury's answers were absolutely consistent with both the instructions and the evidence presented.

A. What Did Westinghouse Know?

For the most part, defendants and Westinghouse agree that the jury necessarily made certain findings of fact. They agree that, in finding liability on both the § 1114 and § 1125 claims, the jury necessarily found: 1) that defendants sold reconditioned breakers bearing the Westinghouse mark; 2) that they did not designate them as "reconditioned"; 3) that they did so without Westinghouse's consent; and 4) that this practice was likely to cause confusion.

Defendants and Westinghouse also agree that since the jury found for defendants on the affirmative defenses to § 1125, it necessarily found that Westinghouse knew or should have known that defendants were selling reconditioned breakers bearing the Westinghouse mark without labelling them as reconditioned.

Finally, both defendants and Westinghouse agree that the jury's findings on the § 1114 affirmative defenses indicate that Westinghouse did not know, nor should it have, that defendants happened to be duplicating Westinghouse labels rather than using original Westinghouse labels on the reconditioned breakers.

This interpretation is perfectly consistent with the instructions. As both Westinghouse and defendants note, Instruction 65 required defendants to show that Westinghouse knew, or should have known, that defendants were duplicating Westinghouse labels rather than merely using original Westinghouse labels, in order to prove their affirmative defenses to § 1114. Such a showing was not required, however, to establish affirmative defenses to § 1125. Since the instructions indicated that the original/copied label distinction was the only difference between the affirmative defenses, this interpretation is the only one that makes the jury's responses consistent.

Moreover, this Court has no reason to suspect that the jury lost sight of this distinction or misunderstood, forgot, or somehow refused to follow this instruction. Each juror had a copy of the instructions in the jury room, and both sides emphasized the instruction at closing argument. After telling the jury that the distinction between copied and original labels differentiated § 1114 and § 1125, Westinghouse repeatedly highlighted Instruction 65, explaining that defendants had to prove knowledge of copying to establish affirmative defenses to § 1114. Then, noting that defendants had failed to present any persuasive evidence that Westinghouse knew, or should have known, that defendants were copying labels, rather than using original labels, Westinghouse told the jury that it could not find affirmative defenses to the § 1114 claim.

With considerably less enthusiasm, defendants also emphasized the impact of Instruction 65, noting that they had to prove that Westinghouse knew, or should have known, that defendants were making replacement labels.

Thus, it is virtually undisputed that the jury found that although Westinghouse knew, or should have known, that defendants were using the Westinghouse mark on reconditioned breakers, they did not know that defendants were copying Westinghouse labels.

B. Defendants' Intent.

The jury's findings regarding Westinghouse's notice are undisputed and clear. The jury's conclusions about defendants' intent, although the subject of some dispute, are clear as well. Defendants contend that the jury found that defendants intended to duplicate Westinghouse labels, but did not intend to deceive anyone into believing that the reconditioned breakers were new. The jury was clearly instructed that, if it found any defendant intended to deceive, none of the affirmative defenses applied. Since the jury found that defendants had established their affirmative defenses to all of Westinghouse's claims except for the § 1114 claim (which is explained by Instruction 65), the jury obviously found that defendants had not intended to cause confusion.

Westinghouse disagrees, proposing instead that the jury found that the defendants intended to cause confusion when they replaced Westinghouse labels, but did not intend to cause confusion when they used original Westinghouse labels. Neither logic nor the record supports such an interpretation. Moreover, Westinghouse's argument necessarily implies that the jury either disregarded its instructions or rendered an internally inconsistent verdict.

First, no evidence suggests that defendants intended to deceive when they photocopied labels, but did not intend to deceive when they sold reconditioned breakers bearing original Westinghouse labels. The record indicates that defendants' state of mind was constant throughout. Defendants presented evidence indicating that they told customers when asked that the breakers were reconditioned, advertised themselves as breaker reconditioners, and assumed that everyone knew the breakers were reconditioned. No evidence indicated that defendants behaved one way when they sold breakers with duplicate labels and another way when they sold breakers with original labels. No testimony indicated that the breakers with new labels were in fact more confusing than those with original paper or permanent labels. In fact, substantial testimony indicated that, while some of defendants' "counterfeit labels" were virtually identical to those printed by Westinghouse, others were poorly made or were the wrong color or size. Thus, the most potentially confusing breakers were those which still bore their original labels, not those with copied labels. Westinghouse's suggestion that defendants did not intend to deceive when they were most likely to do so, yet did intend to deceive when they were least likely to do so simply makes no sense, and is not remotely supported by the evidence.

Second, Westinghouse's interpretation necessarily implies that the jury answered the verdict form inconsistently. For example, the jury was clearly instructed that Westinghouse's claim for unfair competition under the California Business Professions Code covers "any unlawful, unfair, or fraudulent business act or practice," which quite obviously covers copying and applying replacement labels with an intent to deceive. See Instruction 42. If the jury had found such an intent, it would have found that Westinghouse proved their claim under the California Business Professions Code, but could not have found for defendants on the affirmative defenses because good faith is a prerequisite to the affirmative defenses under Instruction 66.

Similarly, if the jury had found, as Westinghouse suggests, that defendants duplicated Westinghouse's mark with an intent to deceive, the jury necessarily would have found liability on the common law unfair competition claim as well. This claim requires "a species of fraud or deceit." See Instruction 43. Obviously, if the jury had found that defendants copied labels with the intent to deceive, it would have found that Westinghouse proved this claim.

By arguing that the jury found that defendants intended to deceive when they duplicated Westinghouse labels, yet did not intend to deceive when they used original Westinghouse labels, Westinghouse asks this Court to conclude that the jury responded illogically, without regard to the evidence, and inconsistently. As even Westinghouse acknowledges, this Court must adopt an interpretation of the jury's findings that makes them consistent: "[w]here there is a view of the case that makes the jury's answers . . . consistent they must be resolved that way. [A] search for one possible view of the case which will make the jury's finding inconsistent results in a collision with the Seventh Amendment." Atlantic Gulf Stevedores, Inc. v. Ellerman Lines, Ltd., 369 U.S. 355, 364, 82 S.Ct. 780, 786, 7 L.Ed.2d 798 (1962). See also Toner v. Lederle Laboratories, 828 F.2d 510, 512 (9th Cir. 1987), cert. denied, 485 U.S. 942, 108 S.Ct. 1122, 99 L.Ed.2d 282 (1988) ("the court must search for a reasonable way to read the verdicts as expressing a coherent view of the case"). Therefore, this Court accepts the following facts as determined by the jury:

1) Defendants used Westinghouse's marks on reconditioned breakers;

2) without Westinghouse's consent;

3) such use was likely to cause confusion.

4) Defendants did not intend to deceive the public with its use of the Westinghouse mark.

5) Westinghouse knew, or should have known, that defendants were selling reconditioned breakers bearing Westinghouse's marks.

6) Westinghouse did not know, nor should it have known, that defendants happened to be reproducing the labels.

III.

A. Westinghouse Established Its § 1114 Claim.

The jury found that Westinghouse established all of the facts necessary to prove its § 1114 claim. Where confusion would otherwise result, a reconditioned product must be labelled as "reconditioned" such that purchasers are aware of the true source of both the labor and the components which make up the product. This rule assures consumers that a given label indicates a given standard of quality control, and is supported by a half-century of jurisprudence. See, e.g., Polymer Technology Corp. v. Mimran, 975 F.2d 58, 62 (2d Cir. 1992) ("One of the most valuable and important protections afforded by the Lanham Act is the right to control the quality of the goods manufactured and sold under the holder's trademark."); Shell Oil Co. v. Commercial Petroleum, Inc., 928 F.2d 104, 107 (4th Cir. 1991) ("A product is not truly `genuine' unless it is manufactured and distributed under quality controls established by the manufacturer."); Singer Mfg. Co. v. Briley, 207 F.2d 519, 521 n. 3 (5th Cir. 1953); Brandtjen Kluge, Inc. v. Prudhomme, 765 F. Supp. 1551, 1573 (N.D.Tex. 1991); Joy Mfg. Co. v. CGM Valve Gauge Co., 730 F. Supp. 1387, 1394-95 (S.D.Tex. 1989); Adolf Coors Co. v. A. Genderson Sons, Inc., 486 F. Supp. 131, 135 (D.Colo. 1980).

Notwithstanding this well-established line of authority, the Pencon defendants suggest that a Ninth Circuit decision decided after the jury returned its verdicts in this case, Intel Corp. v. Terabyte Int'l, 6 F.3d 614 (9th Cir. 1993), undermines Westinghouse's § 1114 claim. As the Pencon defendants read Intel, sale of a reconditioned product violates § 1114 only if (1) it is relabeled as having a capacity that it does not have (the Intel facts); or (2) the changes to the breakers were "so extensive or so basic that it would be a misnomer to call the article by its original name."

The Pencon defendants contend that the reconditioned breakers in the instant case were substantively the same as new breakers — thus, they cannot be liable under § 1114. Defendants grossly misread Intel and the Supreme Court case upon which it relies, Champion Spark Plug Co. v. Sanders, 331 U.S. 125, 67 S.Ct. 1136, 91 L.Ed. 1386 (1947). Intel suggests that a defendant cannot label one product as another, even if both products are made by the same source. In other words, don't put a Mustang mark on your Ford Escort and try to sell it as a Mustang, even though both cars are made by Ford. Champion suggests that in some circumstances, "the reconditioning or repair would be so extensive or so basic that it would be a misnomer to call the article by its original name, even though the words `used' or `repaired' were added." Champion, 331 U.S. at 129, 67 S.Ct. at 1138 (emphasis added). In other words, after your Mustang has been squashed into a metal cube by the wrecker, you cannot rebuild a Mustang from the scrap and sell it as a "used Ford Mustang", even though it was once a Mustang.

Neither case suggests that an automobile restorer can take a Mustang with 50,000 miles on it, restore it, roll back the odometer, and use the Ford Mustang mark such that consumers believe that it is a new Mustang, even if in fact it may be qualitatively identical to a new Mustang. That, in effect, is what the jury found that defendants did here. Thus, the jury properly concluded that Westinghouse proved its § 1114 claim.

B. Defendants Established Affirmative Defenses to Both the § 1114 and § 1125 Claims.

With regard to the affirmative defenses, the jury found:

1) Defendants did not intend to deceive the public with its use of the Westinghouse mark.

2) Westinghouse knew, or should have known, that defendants were selling reconditioned breakers bearing Westinghouse's marks.

3) Westinghouse did not know, nor should it have known, that defendants happened to be reproducing the labels.

Westinghouse argues that since the jury found that Westinghouse neither knew, nor should have known, that defendants were copying labels, defendants are liable for those breakers which bore copied labels, but not those which bore original labels.

Defendants counter that such a result is simply illogical and unsupported by the law. So long as Westinghouse knew, or should have known, that defendants were using the Westinghouse mark, it makes no difference whether Westinghouse knew that the labels were copies or thought they were originals. According to defendants, Instruction 65 erroneously focused the jury's attention on an irrelevant detail — whether Westinghouse knew that the defendants were duplicating labels. Since the jury found for defendants on all of the requisites to the affirmative defenses, defendants ask this Court to enter judgment in their favor.

Instruction 65 thus becomes the fulcrum of this case. If it is a correct statement of law, this Court should calculate the damages to which Westinghouse is entitled. If it is not, this Court should conclude that Westinghouse is not entitled to monetary relief.

Instruction 65, one of seventy-two eventually adopted, was based on the mundane principle that proving an affirmative defense to one claim does not necessarily establish an affirmative defense to another claim because the elements of the claims may differ. See, e.g., Hobson v. Wilson, 737 F.2d 1, 35 (D.C. Cir. 1984), cert. denied, 470 U.S. 1084, 105 S.Ct. 1843, 85 L.Ed.2d 142 (1985); Yeadon v. New York City Transit Authority, 719 F. Supp. 204, 209 (S.D.N.Y. 1989). This instruction is so standard, routine, and innocuous that it wriggled into the nearly 100-page packet of instructions without fanfare, notwithstanding defendants' timely objection.

Westinghouse continues to contend that Instruction 65 was correct because the § 1114 and § 1125 claims have different elements and involve "different levels of culpability." According to Westinghouse, the § 1114 claim has an additional element — that defendants reproduced Westinghouse labels rather than merely used original Westinghouse labels they already possessed. Moreover, Westinghouse argues that since § 1114 requires duplication of labels, it involves a greater level of culpability, since "counterfeiting labels" is inherently more sinister than deceiving with original labels. Westinghouse is incorrect, apparently still confused by 1) section 1114's requirement of "use in commerce [of] any reproduction, counterfeit, copy or colorable imitation of a registered mark"; and 2) section 1117's special penalties against those who "counterfeit."

Contrary to Westinghouse's belief, using duplicate labels is not an element of § 1114 — plaintiff need prove only that defendants used reasonable facsimiles of the Westinghouse mark, regardless of whether they used original or photocopied labels. To hold otherwise would incorrectly shift the focus away from the fundamental "keystone" of both unfair competition and trademark infringement — likelihood of confusion — onto something about which the Lanham Act is unconcerned — the mere act of photocopying. Since the public is no more likely to be deceived by a counterfeit label than they are by an original label (in fact, the opposite is true), § 1114 does not distinguish between the two.

As Judge Posner remarked:

[W]e can see no difference, so far as the objectives of section 1114(1)(a) are concerned, between [unauthorized use of original labels] and making a reproduction [of the label]. The happenstance of having trademarks made by the owner in one's possession, so that one doesn't have to copy them, has no relevance to the purposes of the statute. Indeed, the danger of confusion is even greater because the "imitation" is not merely colorable, but perfect. The more fundamental point is that the purpose of trademark law is not to guarantee genuine trademarks but to guarantee that every item sold under a trademark is the genuine trademarked product, and not a substitute. . . . The only function of a trademark is to designate a product or service, and the misconduct at which section 1114 is aimed consistent not in making the trademark without authorization but in affixing it to the wrong product; it is a[n irrelevant] detail whether the trademark was [original] or merely copied.

Since confusion is the touchstone of trademark law, and since copying labels is not an element of either a § 1114 claim or a § 1125 claim, the Lanham Act does not forbid the mere act of copying labels. Prestonettes, Inc. v. Coty, 264 U.S. 359, 368, 44 S.Ct. 350, 351, 68 L.Ed. 731 (1924) ("[Trademark] does not confer a right to prohibit the use of the word or words. It is not a copyright. . . . A trademark only gives the right to prohibit the use of it so far as to protect the owner's good will against the sale of another's product as his."). See also Shaw v. Lindheim, 919 F.2d 1353, 1364-65 (9th Cir. 1990) ("[Plaintiff's] claim is not consistent with the Lanham Act's purpose of preventing individuals from misleading the public by placing their competitors' work forward as their own. . . . We decline to expand the scope of the Lanham Act to cover cases in which the Federal Copyright Act provides an adequate remedy."); American Footwear Corp. v. General Footwear Co. Ltd., 609 F.2d 655, 663-64 (2d Cir. 1979), cert. denied, 445 U.S. 951, 100 S.Ct. 1601, 63 L.Ed.2d 787 (1980); Quality Inns Int'l, Inc. v. McDonald's Corp., 695 F. Supp. 198, 218 (D.Md. 1988) ("Unlike a copyright, mere reproduction of a trademark is not an infringement."); Bayer Co. v. Shoyer, 27 F. Supp. 633, 637 (E.D.Pa. 1939); McCarthy, § 6.04[2] ("Copyright law gives the author the right to prevent copying of the copyrighted work in any medium. Trademark law prevents the use of a similar mark on such goods or services as would probably cause confusion. Thus, the scope of rights in copyrights and trademarks is defined quite differently."). Cf. Vanity Fair Mills, Inc. v. T. Eaton Co., 234 F.2d 633, 639 (2d Cir.), cert. denied, 352 U.S. 871, 77 S.Ct. 96, 1 L.Ed.2d 76 (1956) ("[T]he wrong takes place not where the deceptive labels are affixed to the goods or where the goods are wrapped in the misleading packages, but where the passing off occurs . . ."). Thus, where a trademark holder takes issue with the copying of his labels but has acquiesced to the use of his mark, he must either sue for a breach of a licensing agreement or rely on copyright law to provide protection, if he is entitled to any protection at all.

The original/duplicate label distinction is also irrelevant to § 1117, which provides for stronger remedies against those who use "counterfeit" marks. Since the Act is concerned with confusion, it defines a counterfeit mark as one "identical with, or substantially indistinguishable from" plaintiff's mark. 15 U.S.C. § 1116(d)(1)(B)(ii). If, for example, a plaintiff were to use the registered trademark "Kortenkampwear" in camping gear and clothes, and a defendant were to apply the identical mark to non-Kortenkampwear camping products, the defendant would be a counterfeiter, regardless of whether it used labels originally printed by the plaintiff or made its own labels. In such a case, since the public is exceptionally likely to be confused by the use of identical marks, and such a defendant's conduct is often egregious, § 1117(b) provides for treble damages absent exceptional circumstances. See Speicher, 877 F.2d at 537 (ordering the district court to contemplate treble damages under § 1117(b), even though defendant used labels printed by the plaintiff).

If, on the other hand, a defendant uses the mark "KurtsKampingwear" on non-Kortenkampwear products, it would not be a counterfeiter since this mark is not "identical with, or substantially indistinguishable from" the plaintiff's mark. Although this may not prevent the defendant from being found liable for trademark infringement under § 1114 if the defendant's label is held to be a "colorable imitation" of plaintiff's mark, it will protect the defendant from being liable for treble damages. 15 U.S.C. § 1117(a). See McCarthy, § 25.01[5][b] ("[T]he Lanham Act carves out `counterfeit' as a more egregious type of `colorable imitation.' When courts have used the term `counterfeit,' it has usually been in the context of invoking greater discretionary remedies.").

Thus, in the instant case, whether defendants copied labels or used original Westinghouse labels is irrelevant. Defendants were liable under § 1114, if at all, for all reconditioned breakers which were likely to cause confusion, including those with original and those with duplicate labels. Moreover, defendants were exposed to treble damages liability, if at all, for all reconditioned breakers bearing either original Westinghouse labels or copies, so long as those copies were "substantially indistinguishable from" the original Westinghouse labels. To establish an affirmative defense to § 1114, defendants needed only to prove that Westinghouse knew that defendants were using the Westinghouse mark. They did not need to prove that Westinghouse knew that defendants were copying labels. Since the jury found that Westinghouse knew, or should have known, that defendants were selling reconditioned breakers bearing the Westinghouse mark without labeling them as reconditioned, it found that defendants established each and every element necessary to prove an affirmative defense to Westinghouse's § 1114 and § 1125 claims.

Consequently, this Court concludes that Westinghouse is entitled to no monetary recovery whatsoever, and will enter judgment to that effect. See Silverberg v. Paine, Webber, Jackson Curtis, Inc., 710 F.2d 678, 685 (11th Cir.1983) ("[W]here a commonsensical interpretation of the various verdict forms . . . makes clear [the jury's] intent," the district court appropriately denied a new trial and entered judgment consistent with that intent). Cf. Los Angeles Nut House v. Holiday Hardware Corp., 825 F.2d 1351, 1356 (9th Cir. 1987); F.R.Civ.P. 49.

IV.

Westinghouse might argue that even without Instruction 65, the jury might have deliberately found for Westinghouse on the § 1114 affirmative defenses and against it on all of the other claims, intending to play Solomon and give defendants and plaintiff each half a baby. Westinghouse may contend that by entering judgment consistent with the jury's factual findings, this Court deprives the jury of its opportunity to split the baby in half.

This argument is unavailing. At a minimum, it is fatally speculative. Considering the evidence presented on affirmative defenses and unclean hands, this Court cannot fathom that any jury would have attempted to split the difference and give Westinghouse the benefit of an inconsistent verdict.

Second, even if the jury had intentionally reached an unfounded and anomalous result, this Court doubts whether such a verdict would have withstood scrutiny. Although, as a rule, civil juries must return consistent verdicts, some argue that an inconsistent verdict should be allowed to stand when it is the product of jury intent rather than jury confusion. See Alexander M. Bickel, Note, Judge and Jury — Inconsistent Verdicts in the Federal Courts, 63 Harv.L.Rev. 649, 654-55 (1950); Hines v. IBG Int'l, Inc., 813 F.2d 1331, 1334 (4th Cir. 1987). Judge Easterbrook counters, however, that such verdicts may indicate compromise, which dilutes the requirement that verdicts be unanimous, or worse, may indicate confusion. Will v. Comprehensive Accounting Corp., 776 F.2d 665, 677 (7th Cir. 1985), cert. denied, 475 U.S. 1129, 106 S.Ct. 1659, 90 L.Ed.2d 201 (1986). This Court adds that such verdicts not only dilute the law but also discourage settlement of large cases by eliminating some of the risk of trial. Thus, this Court concludes that entering judgment for defendants on all of their affirmative defenses does not deprive Westinghouse of its right to an inconsistent verdict, since no such right exists.

At any rate, Westinghouse deprived itself of any such right by championing a misleading instruction which implied that the Lanham Act forbids the act of copying labels. Westinghouse cannot now argue that the jury would have reached a Solomon-like verdict if only this Court had not given the instruction which Westinghouse itself advocated. See Cancellier, 672 F.2d at 1316 ("Significantly, the challenged instruction was fashioned by the judge from language submitted by [the party now contending that it is not harmless error].").

V.

"It has long been established that a litigant `is entitled to a fair trial but not a perfect one.'". Hard v. Burlington N. R.R. Co., 870 F.2d 1454, 1460 (9th Cir. 1989) (quoting Brown v. United States, 411 U.S. 223, 231-32, 93 S.Ct. 1565, 1570, 36 L.Ed.2d 208 (1973)); Devices for Medicine, Inc. v. Boehl, 822 F.2d 1062, 1066 (Fed. Cir. 1987) ("trials must be fair, not perfect"). Here, the trial was not perfect but it was more than fair to Westinghouse, which received the benefit of Instruction 65. In spite of Instruction 65's suggestion that copying labels is a wrong in and of itself, the jury found all facts necessary for defendants to prevail on their affirmative defenses to all claims, and found that defendants did not intend to deceive. In these circumstances, the error is harmless. Westinghouse is entitled to neither damages nor a new trial.

However, since the jury found that Westinghouse proved its § 1114 and § 1125 claims, Westinghouse may be entitled to an injunction. This Court therefore invites the parties to submit supplemental briefs on the appropriate form of injunctive relief in light of this order. These briefs shall be filed no later than Friday, July 8, 1994.

IT IS SO ORDERED.