B. The Elements of Contributory Liability under Inwood: 2. The Requirement of Supplying a Product
Where a contributory liability claim is predicated on the second prong of Inwood, i.e. that the defendant supplied a product to a third party with actual or constructive knowledge that the product was being used to infringe the plantiff’s marks, the plaintiff obviously must allege that a product has been supplied or the claim will fail. Consequently, this fact tends to be undisputed (and therefore not subject to much discussion) in contributory liability cases. See, e.g. Monsanto Co. v. Campuzano, 206 F.Supp.2d 1271, 1274 (S.D. Fla. 2002)(fact that defendants engaged in a scheme to repackage plaintiff’s product in counterfeit retail boxes and sell it to the retail market, thereby infringing plaintiff’s trademarks, was undisputed). See also SB Designs v. Reebok Int’l, Ltd., 338 F.Supp.2d 904, 912 (N.D. Ill. 2004) (rejecting contributory liability claim where plaintiff failed to provide any evidence that defendant had supplied allegedly infringing product).
