5. No Right of Contribution amongst Defendants
As noted above, contributory and direct infringers are joint tort-feasors, and generally, one joint tortfeasor is entitled to contribution from other joint-tortfeasors. Transdermal Products, Inc. v. Performance Contract Packaging, Inc., 943 F. Supp. 551, 554 (E.D. Penn. 1996)(citing the Restatement (Second) of Torts § 886A (1979)), discussed in further detail in Section II.B.1 However, this is not the case with federal trademark infringement, because, even though the Lanham Act has its roots in the common law, federal law is treated differently from state law on the question of indemnification. See Id. (noting that “the cases are not in agreement on whether the Lanham Act allows for such contribution.”). (Note that in Transdermal Products, supra, the plaintiff had proceeded under both the Lanham Act and the Pennsylvania Trademark Act, and the court found that state law authorized contribution. Transdermal, supra at 554.). Thus it has been held that under federal law “[a] defendant held liable under a federal statute has a right to indemnification or contribution from another only if such right arises: (1) through the affirmative creation of a right of action by Congress, either expressly or implicitly, or (2) under the federal common law.” Wagner v. Circle W. Mastiffs, 2010 WL 1009904 at *9 (S.D. Oh.)(trademark dilution case), citing Doherty v. Wireless Broad. Sys. of Sacramento, Inc., 151 F.3d 1129, 1130-31 (9th Cir.1998), cert. denied, 528 U.S. 813, 120 S.Ct. 48, 145 L.Ed.2d 43 (1999). Consequently, courts have consistently concluded that there is no right to indemnification or contribution under the Lanham Act. Wagner v. Circle W. Mastiffs, supra, and cases cited therein; see also, e.g., Getty Petroleum Corp. v. Island Transp. Corp., 862 F.2d 10, 16 (2d Cir.1988) (“No express right of contribution exists under the Lanham Act, and [the district court] correctly concluded that it was inappropriate to imply such a right.”), cert. denied, 490 U.S. 1006, 109 S.Ct. 1642, 104 L.Ed.2d 157 (1989).
