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.
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").