Kenyon successfully convinced a jury to find that its clients, Home Shopping Network, broadcaster of the well-known HSN television channel, Daystar Productions, and musician and on-air personality Stephen Paul (aka “Esteban”), did not willfully infringe the FISHMAN mark in a $25 million trademark suit brought by Fishman Transducers, Inc. in the District of Massachusetts.
Fishman Transducers alleged that the defendants’ use of its FISHMAN mark in connection with the sale of ESTEBAN guitar packages on Home Shopping Network’s on-air broadcasts and website from May 2006 to January 2007 constituted willful violations of various state and federal laws, including trademark infringement, unfair competition, false advertising, counterfeiting, and consumer protection laws. Through a series of summary judgment motions and evidentiary motions, Kenyon obtained several extremely favorable pre-trial rulings which confined the trial issues to the core Lanham Act issues alleged in the complaint. This resulted in a deduction of over $10 million from Fishman’s damages claim. In addition, during the course of trial, Kenyon successfully moved to exclude the plaintiff's damages expert from offering any testimony on the subject of lost profits. Following the eight-day jury trial and two days of deliberations, the jury found that the defendants’ use of the plaintiff’s FISHMAN mark, though infringing under the Lanham Act, was not willful or intentionally false. As a result of the verdict, Honorable George O’Toole, Jr. entered judgment with no monetary award for Fishman other than leave to file a bill for court costs. Case number 07-civ-10071 (2011).