The district court granted defendant's motion, and plaintiff filed this appeal. 743 F. Supp. 369. The district court had jurisdiction over plaintiff's federal trademark claims under 28 U.S.C. § 1338 (1988), and pendent jurisdiction over plaintiff's state claims.
Pennsylvania's common law tort of unfair competition has the same standard as § 43(a). Institute for Scientific Info. v. Gordon and Breach, 743 F.Supp. 369, 373 (E.D. Pa. 1990), vacated on other grounds, 931 F.2d 1002 (3d Cir.), cert. den., 502 U.S. 909 (1991). Accordingly, the following discussion addresses both federal and state claims.
Pennsylvania's common law tort of unfair competition has the same standard as § 43(a). Institute for Scientific Info. v. Gordon and Breach, 743 F. Supp. 369, 373 (E.D.Pa. 1990), vacated on other grounds, 931 F.2d 1002 (3d Cir.), cert. denied, 502 U.S. 909, 112 S.Ct. 302, 116 L.Ed.2d 245 (1991). Accordingly, the following discussion addresses both federal and state claims.
617 F.2d at 1185.Institute for Scientific Information v. Gordon Breach, 931 F.2d 1002, 1010 (3d Cir.) (discussing in dicta district court's determination of whether plaintiff's mark was "clearly descriptive" as necessary prerequisite to evaluating "fair use" defense), vacating and remanding 743 F. Supp. 369 (E.D.Pa. 1990), cert. denied ___ U.S. ___, 112 S.Ct. 302, 116 L.Ed.2d 245 (1991); WCVB-TV v. Boston Athletics Ass'n, 926 F.2d 42, 46 (1st Cir. 1991) (stating that "fair use" defense requires that plaintiff's mark be descriptive); Shakespeare Co. v. Silstar Corp. of Am., 802 F. Supp. 1386, 1396 (D.S.C. 1992), rev'd on other grounds 9 F.3d 1091 (4th Cir. 1993), cert. denied ___ U.S. ___, 114 S.Ct. 2134, 128 L.Ed.2d 864 (1994); Cullman Ventures, Inc. v. Columbian Art Works, Inc., 717 F. Supp. 96, 132-33 (S.D.N.Y. 1989); cf. Ringling Bros. — Barnum Bailey Combined Shows, Inc. v. Celozzi-Ettelson Chevrolet, Inc., 855 F.2d 480, 481, 484 (7th Cir.) (evaluating "fair use" defense after noting that district court found "The Greatest Show on Earth" to be descriptive mark that had acquired secondary meaning). See generally 1 J. Thomas McCarthy, McCarthy on Trademarks and Unfair Competition, § 11.17[1] (3d ed. 1992).
In the Third Circuit, "[c]ontinued use of words that are claimed to infringe, even after notice of the claim, is not evidence of bad faith." Institute for Scientific Info., Inc. v. Gordon Breach, 743 F. Supp. 369, 372 (E.D.Pa. 1990). See also Andy Warhol Enterprises, Inc. v. Time, Inc., 700 F. Supp. 760, 766 (S.D.N.Y. 1988) (bad faith will not be found merely from the fact "defendant did not abandon its project at plaintiff's suggestion").
United States v. Wood, 925 F.2d 1580, 1582 (7th Cir. 1991); Haynesworth v. Miller, 820 F.2d 1245, 1249, n. 11 (D.C. Cir. 1987); 5A Wright Miller, Federal Practice and Procedure: Civil 2d § 1368. An order granting a motion for judgment on the pleadings is therefore properly entered only where there is no dispute as to the material facts and it is obvious that one party is entitled to judgment as a matter of law. Institute for Scientific Information, Inc. v. Gordon and Breach, 743 F. Supp. 369, 373-374 (E.D.Pa. 1990); Damron v. Smith, 616 F. Supp. 424, 425 (E.D.Pa. 1985). B. Standing to Sue Under the Pennsylvania Uniform Fraudulent Conveyances Act, 39 P.S. § 351, et seq.