Because any contracts which exist between Schumacher and its retail dealers do not contain the terms of Schumacher's marketing policy, and because the policy would be unenforceable had it been included as a term of any such contract, I find that Schumacher has not exhibited a reasonable likelihood of succeeding on its claim for tortious interference with an existing contract.
ii. Prospective Contractual Relations
Pennsylvania courts follow the Restatement (Second) of Torts § 766B in adjudicating claims for interference with prospective contractual relations.
See Glenn v. Point Park College, 441 Pa. 474, 272 A.2d 895 (1971); Thompson Coal Co. v. Pike Coal Co., 488 Pa. 198, 412 A.2d 466 (1979); Koppers Co., Inc. v. Krupp-Koppers GmbH, 517 F. Supp. 836, 852 (W.D. Pa. 1981). A prima facie showing of tortious interference with prospective contractual relations requires a prospective contractual relation between a third party and the plaintiff, a purpose or intent to harm the plaintiff by preventing the relationship from occurring, the absence of a privilege or justification on the part of the defendant, and the occurrence of actual harm or damage to the plaintiff as a result of the defendant's conduct. See Glenn, 272 A.2d at 898; Thompson Coal, 412 A.2d at 471; Koppers, 517 F. Supp. at 851.
Schumacher's argument essentially is that Silver, by maintaining its own legitimate business, causes Schumacher to forego prospective opportunities by forcing it to adhere to terms of a marketing policy that Schumacher alone adopted and thereby terminate retailers doing business with Silver. Schumacher has it backwards in terms of its tortious interference claim. In every case cited by Schumacher, liability for tortious interference with prospective contractual relations is restricted to refusals by third parties to deal with the plaintiff as a result of acts by the defendant. See Stout v. Pengst Motors of Am., 662 F. Supp. 1016, 1018-19 (E.D. Pa. 1986) (insufficient evidence that third party refused to deal with plaintiff); Vintage Homes, Inc. v. Levin, 382 Pa. Super. 146, 554 A.2d 989 (Pa. Super. 1989) (liability imposed where third party was discouraged from dealing with plaintiff as a result of defendant's filing lis pendens); SHV Coal, Inc. v. Continental Grain Co., 376 Pa. Super. 241, 545 A.2d 917, 921 (Pa. Super. 1989) (liability where third party refused to deal with plaintiff because of defendant's actions); Thompson Coal, 412 A.2d at 471 (plaintiff failed to establish facts demonstrating prospective business relationship between plaintiff and third parties).
Schumacher has presented no evidence that third party retailers have refused to deal with Schumacher as a result of Silver's actions. To the contrary, the evidence presented by Schumacher is that Schumacher refuses to deal with third party retailers as a result of Silver's actions. Thus, the only thing standing between Schumacher and its prospective contractual relations is its own marketing policy. It is simply not the purview of section 766B to allow recovery where the plaintiff knocks down a straw man it alone sets up.
III. IRREPARABLE INJURY
Where a Lanham Act plaintiff makes a strong showing of likely confusion, irreparable injury follows as a matter of course. Opticians Ass'n of Am. v. Independent Opticians of Am., 920 F.2d 187, 196 (3d Cir. 1990). The evidence of likely confusion and actual confusion in this case are sufficient showing of Schumacher's irreparable injury absent a limited injunction.
Silver has presented no evidence that it will be substantially injured by my granting a narrowly tailored injunction. To the contrary, Silver seems to have conceded its agreement to an order appropriately limited in scope.
IV. THE PUBLIC INTEREST
There is no reason to conclude, based upon the record in this case, that the public will be ill served by my granting an appropriate injunction. To the contrary, the public benefits from a wide availability of consumer goods so long as that availability is maintained in a way that precludes confusion, mistake and deception in the marketplace.
For the foregoing reasons, I will grant a narrowly tailored injunction restraining Silver and its employees from making the statements and representations that gave rise to this litigation. I will deny Schumacher's request for an affirmative disclaimer of affiliation between Silver and Schumacher.
A basic principle in the law of equitable remedies is that the relief granted should be no broader than necessary to cure the effects of the harm caused. See Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 28 L. Ed. 2d 554, 91 S. Ct. 1267 (1971) (nature of violation determines scope of equitable remedy). Especially in light of the First Amendment constraints in the area of commercial speech that is not demonstrably false, see, e.g., Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Counsel, Inc., 425 U.S. 748, 48 L. Ed. 2d 346, 96 S. Ct. 1817 (1976) (commercial speech is not completely outside first amendment protection), I am constrained to order the least restrictive means of preventing and eliminating confusion, mistake and deception.
AND NOW, this 22nd day of December 1992, based on plaintiff's motion under section 43(a) of the Lanham Act, 15 U.S.C. § 1125, it is ORDERED that the owners, agents and employees of Silver Wallpaper and Paint Company, Inc. shall refrain from representing or stating to any consumer:
that Silver Wallpaper and Paint Company, Inc. purchases wallcovering products directly from F. Schumacher & Company;
that F. Schumacher & Company does not authorize or permit Silver Wallpaper and Paint Company, Inc. to discount its products; or
that, in connection with the sale or offer for sale of products of F. Schumacher & Company, Silver Wallpaper and Paint Company, Inc. will contact the manufacturer or F. Schumacher & Company for price or product information or to place the consumer's order.
All other relief requested by plaintiff in connection with its Lanham Act claim is DENIED.
It is further ORDERED that all relief requested by plaintiff on its tortious interference claims is DENIED.
Anita B. Brody, J.