For the second time in this trademark infringement case, the plaintiffs-appellants (Distiller) appeal from a judgment in favor of the defendants-appellees (Restaurant). At the initial trial, the district judge granted Restaurant’s motion for a directed verdict at the close of the plaintiffs’ evidence and dismissed the complaint. We reversed and remanded the case for further proceedings.
In our decision we delineatеd the test to be used in determining trademark infringement. We noted that besides the opposing parties, “the consuming public, is present and its interests are paramount. Hence infringement is found when the evidence indicаtes a likelihood of confusion, deception or mistake on the part of the consuming public.”
In the absence of contrary evidence, therefore, it must be presumed that at least 15% of the restaurant-going public, upon seeing the accused sign, would mistakenly believe that Distiller is “sponsoring or promoting” the restaurant identified by that sign. That mistaken belief evidences a likelihood of confusion, deception, or mistake regarding the sponsorship of Restaurant’s services sufficient on *577 this record to establish Distiller’s right to relief.
Following remand, Restaurant had its own consumer survey conducted. At the second bench trial, Distiller chose to rest as its case-in-chief on the evidence presented at the first trial. Restaurant introduced its survey and five witnesses, including Dr. Kenneth Prewitt, a political science expert with no market research exрerience, who testified that Distiller’s survey was unreliable because the key question was leading. In rebuttal, Distiller called Dr. Michael Ray, a psychologist and market research expert, who supported the vаlidity of Distiller’s survey. The district judge credited Restaurant’s expert over Distiller’s expert regarding the surveys, and on other points generally followed the reasoning it had adopted at the initial trial. The judge made numerous findings оf fact and conclusions of law and entered judgment in favor of Restaurant. 2
On appeal Distiller contends first, that the trial court did not follow the law of the case upon remand, and second, that the trial court erred in holding for Restaurant on the issue of laches and estoppel.
I
When a court states a rule of law which is to be applied in the case before it, the court establishes the “law of the case” that will normally be applied to the same issues in subsequent proceedings in that case. “The rule of the law of the case is a rule of practice, based upon sound policy that when an issue is once litigated and decided, that should be the end of the matter.”
United States v. United States Smelting, Refining & Mining Co.,
Although the district judge correctly noted that no one factоr is
per se
determinative in an infringement action, he unfortunately gave improper consideration to certain factors that should not have been considered. First, he stressed the absence of competition between the parties. In his memorandum opinion, the judge stated that the “use of the word beefeater on a competing liquor product would give plaintiff a compelling case,” but the use of the word “on thе sign of ... a family restaurant gives plaintiff no basis at all for a claim,” that in such a case, “there is no real likelihood of confusion ... in the commercial sense, which is detrimental to the sales or business image of the plaintiff.” When a particular mark is famous and has acquired secondary meaning, as is true in the case of Beefeater Gin, it is error to limit the effect of the mark to a competing liquor product, or evеn to a restaurant which sells liquor. As we noted earlier, “[a] mark that is strong because of its fame or its uniqueness, is more likely to be remembered and more likely to be associated in the public mind with a greater breadth of products or services, than is a mark that is weak . . . .”
The district judge also stated that “since [Distiller’s] label and the accused sign have nothing in common but a single word, there has been no reproduction, copying or colorable imitation [and] the concept of likelihood of confusion never becomes relevant.” On the previous appeal, we noted the judge’s failure to give sufficient weight to the predоminant feature of the marks in this case — the single word BEEFEATER.
In our prior opinion we stated that absent the presentation of contrary evidence at retrial, the judge would be obliged to find Distiller entitled to relief for trade
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mark infringement.
II
Distiller also contends that the trial judge erred in holding for Restaurant on the issue оf laches and estoppel. Distiller maintains that even if laches were to be held applicable in the case at bar, Distiller would nonetheless be entitled to both injunctive relief and an accounting of profits wrongfully derived by Restaurant through the opening of new restaurants since the filing of this action. It is important to recognize the interrelationship between the types of relief requested by Distiller (an injunction as well as damages and an accounting of profits) and the defenses asserted by Restaurant (laches and estoppel). By reason of laches, a plaintiff in a trademark infringement action may lose the right tо recover damages or wrongfully derived profits during the period prior to the filing of suit. Upon a showing of infringement, however, the plaintiff may still be entitled to injunctive relief,
McLean
v.
Fleming,
When considering a defense of estoppel in a case such аs this one, a court must keep in mind the fact that a trademark infringement action involves not only the right of the trademark owner to control the reputation of his product, but also the right of the consuming public to bе free of confusion.
Under the uncontested facts of this case, it is clear that Distiller delayed instituting suit for infringement for an unreasonable period of time after becoming aware of the “Sign of the Beefeater” restaurants.
5
For this reason, the equitable doctrine of laches precludes recovery by Distiller of damages or profits for the period prior to the filing of its suit. In fact, Distiller concedes as much. It is also clear, however, that Restaurant and its predecessors were aware of the potential risk involved in opening additional restaurants once this action was filed. We are therefore unable to find the requisites for appli
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cation of the doctrine of estoppel.
See Le-bold v. Inland Steel Co.,
In sum, we hold that the trial court erred in concluding (1) that Distiller did not establish its right to relief for trademark infringement and (2) that in any event es-toppel bars the action. We affirm the court’s conclusion that laches applies. Because laches is applicable, Distiller is only entitled to an accounting of profits wrongfully derived by Restaurant through the opening of new restaurants since the filing of this action.
The judgment is reversed and the cause is remanded for the entry of an appropriate injunction and for an accounting of profits and damages.
Notes
. James Burrough Limited v. Sign of the Beefeater, Inc., No. 75 C 385 (N.D.Ill., June 8, 1977).
. Evidence of actual confusion is not necessary tо establish infringement since likelihood of confusion is the gravamen of the action. Yet evidence of actual confusion has often been viewed as the best evidence of the likelihood of confusiоn. See the cases listed in
Union Carbide Corp. v. Ever-Ready, Inc.,
. Because we find that both surveys evidence likelihood of confusion as to Distiller’s sponsorship or promotion of the restaurants, it is unnecessary to reach Distiller’s additional cоntention that the trial judge erroneously excluded actual confusion testimony of respondents from the Chicago portion of Restaurant’s survey.
.
See