
USCA1 Opinion

	




                            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                                 ____________________                                         -2-                      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                                         -3-            "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.                                         -4-                      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.                                         -5-            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.                      ________                                         -6-
