On April 9, 2010, Anchor Wall Systems, Inc. and Anchor Block Company filed a trademark infringement lawsuit against Menard, Inc., claiming the company has copied its landscaping blocks and is therefore diluting the brand and confusing customers.

Some speculate the trademark lawsuit was filed to get information about the manufacturing process of Menard’s potentially infringing products in order to file a patent infringement lawsuit. A patent on the landscaping block’s design expired in October 2009, but an Anchor Wall Systems patent covering the manufacturing process of the product is still valid.

This case is interesting because of the speculation Anchor Block is using the trademark/dilution claim to further explore whether there is also a patent infringement claim.  This filing highlights the dilemma often faced by patent holders who suspect patent infringement, but may have limited knowledge and a limited ability to determine the infringer's activities to see if there is infringement. 

Patent holders are not allowed to file a patent infringement lawsuit on just a hunch of infringement.  They have to have good faith belief after due diligence.  A patent holder may not be able to obtain that amount of information without the aid of discovery forced by a legal proceeding, i.e., filing a lawsuit.  If there are no other claims to assert, such as trademark, unfair competition and the like, the patent holder may have no way to find out what the infringer is actually doing and therefore is without sufficient basis to file the suit.

Anchor Block asks for an injunction and damages in the infringement lawsuit.

SOURCE: Jim Hammerand, “Anchor Block says Menard knocked off its blocks,” Minneapolis St. Paul Business Journal, April 30, 2010 (http://twincities.bizjournals.com/twincities/stories/2010/05/03/story2.html).