UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
No. 94-2241
GETTY PETROLEUM CORPORATION,
Plaintiff, Appellee,
v.
ARIS GETTY, INC., ET AL.,
Defendants, Appellees.
J.P. NOONAN TRANSPORTATION, INC.,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Douglas P. Woodlock, U.S. District Judge]
Before
Boudin, Circuit Judge,
Aldrich and Bownes, Senior Circuit Judges.
Natasha C. Lisman with whom William L. Boesch and Sugarman,
Rogers, Barshak & Cohen, P.C. were on brief for appellant.
Dimitrios Ioannidis with whom Michael S. Field, Beth Pirro Cook
and Field & Schultz were on brief for appellees Aris Getty, Inc., et
al.
June 13, 1995
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ALDRICH, Senior Circuit Judge. Two defendants,
J.P. Noonan Transportation, Inc., a common carrier, and Aris
Getty, Inc., jointly with its owner, George Varelis ("Aris"),
were found liable to Getty Petroleum Corporation ("Getty"), a
well-known vendor of gasoline, under the Lanham Act, 15
U.S.C. 1114 and 1125, for trademark infringement.
Plaintiff's damages were settled via separate negotiations
with each defendant. Noonan then cross-claimed against Aris
for indemnification. In a thorough opinion the district
court disagreed and granted summary judgment for Aris. We
affirm.
The facts are simple. In 1981 Varelis formed Aris
Getty, Inc., and was licensed by Getty to operate a Getty
filling station. It prominently displayed the usual Getty
pole sign, and its gasoline pumps and service attendants'
uniforms bore the Getty name and marks. Aris had an
arrangement with a local distributor to supply it with Getty
gasoline. In 1984 Aris terminated its relationship with
Getty and thereafter began to purchase unbranded gasoline
through J.P. Noonan from another distributor. Except to
change the markings on its pumps to "Aris Gas," Aris made no
change in the appearance of its station, signs, or employee
uniforms.
The court found that Noonan "knowingly delivered
unbranded gasoline to Aris Getty" while fully aware that Aris
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"was not an authorized Getty franchise." Although it murmurs
at the court's conclusion, Noonan knew that many Aris
customers believed they were receiving Getty gasoline. Any
other contention would be fanciful. Thus, as the court
found, Noonan, jointly with Aris, violated the Lanham Act, 15
U.S.C. 1114(1), and was contributorially responsible.
Inwood Laboratories Inc. v. Ives Laboratories, Inc., 456 U.S.
844 (1982).
[L]iability for trademark
infringement can extend beyond those who
actually mislabel goods with the mark of
another. Even if a manufacturer does not
directly control others in the chain of
distribution, it can be held responsible
for their infringing activities under
certain circumstances. Thus, if a
manufacturer or distributor intentionally
induces another to infringe a trademark,
or if it continues to supply its product
to one whom it knows or has reason to
know is engaging in trademark
infringement, the manufacturer or
distributor is contributorially
responsible for any harm done as a result
of the deceit.
456 U.S. at 853-54.
It is true that, as a distributor, Noonan did not
have title to the gasoline. However, it had, and supplied,
an essential factor -- physical possession of the property to
which the trademark was to be attached. Liability -- which
is not questioned -- was thus direct, for an affirmative act,
and not merely vicarious by operation of law for the act of
another.
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In this circumstance Noonan's much cited case of
Garbincius v. Boston Edison Co., 621 F.2d 1171 (1st Cir.
1980), is of no assistance to it, but quite the contrary. In
general indemnity is not allowed when liability is based upon
one's own fault.1
Noonan claims two other strings to its bow, both
based on the great disparity between Aris's profits and its
own meager ones. We assume the disparity.2 However, the
Massachusetts court's dictum of a claimed indemnitee's fault
being disregardable in "exceptional cases" is limited to
fault that is "insignificant in relation to that of the
indemnitor." Rathbun v. Western Massachusetts Electric Co.,
395 Mass. 361, 364, 479 N.E.2d 1383, 1385 (1985). We regard
this as relating to conduct, not to profits. We could not
label wrongful delivery for five years insignificant.
Equally we see no basis for Noonan's claim that its small
1. Indemnity is permitted only when one does
not join in the negligent act but is
exposed to derivative or vicarious
liability for the wrongful act of
another. In such cases the court has
held that plaintiffs in the indemnity
actions had no participation in the
negligence of the defendants.
Garbincius, 621 F.2d at 1176 (citation omitted).
2. How Aris succeeded in obtaining a much smaller settlement
figure than Noonan escapes us, but we think it irrelevant.
These were independent agreements, separately arrived at, and
there is no question of Noonan's payment having reduced
Aris's.
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profits were "special circumstances" that implied a right of
indemnity. If Noonan wanted protection it could have asked
for it as part of its contract.
Affirmed.
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