U.S. Philips Corp. And North American Philips Corp. v. Windmere Corporation, Izumi Seimitsu Kogyo Kabushiki Kaisha

861 F.2d 695
CourtCourt of Appeals for the Federal Circuit
DecidedJanuary 27, 1989
DocketAppeal 87-1476
StatusPublished
Cited by41 cases

This text of 861 F.2d 695 (U.S. Philips Corp. And North American Philips Corp. v. Windmere Corporation, Izumi Seimitsu Kogyo Kabushiki Kaisha) is published on Counsel Stack Legal Research, covering Court of Appeals for the Federal Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
U.S. Philips Corp. And North American Philips Corp. v. Windmere Corporation, Izumi Seimitsu Kogyo Kabushiki Kaisha, 861 F.2d 695 (Fed. Cir. 1989).

Opinions

FRIEDMAN, Circuit Judge.

This case involves electric shavers. Windmere Corporation (Windmere) appeals from a final order of the United States District Court for the Southern District of Florida directing a verdict in favor of U.S. Philips Corp. and North American Philips (collectively Philips) on Windmere’s antitrust counterclaims, 680 F.Supp. 361. Because we hold that there was sufficient evidence to submit the antitrust claims to the jury, we reverse and remand for a new trial on those claims.

[697]*697I

A. The Proceedings in the District Court.

In October 1984, Philips filed suit in the district court against Windmere and Izumi Seimitsu Kogyo Kabushiki Kaisha (hereinafter Izumi) (a Japanese corporation) for infringement of Philips’ electric shaver patent and against Windmere for unfair competition. Windmere filed a counterclaim alleging that Philips had monopolized and attempted to monopolize the electric rotary shaver market, in violation of Section 2 of the Sherman Act, 15 U.S.C. § 2 (1982), and that Philips and Dutch Philips (N.V. Philips Gloeilampenfabrieken) had conspired to restrain trade in that market, in violation of Section 1 of that Act, 15 U.S.C. § 1 (1982). Windmere apparently has abandoned its Section 1 claim.

Both the antitrust and the patent issues were tried to a jury. At the close of Wind-mere’s antitrust case, the district court granted Philips’ motion for a directed verdict on those issues. The court submitted the patent and unfair competition issues to the jury, which ruled for Philips on the patent claim and for Windmere on the unfair competition claim. Pursuant to Rule 54(b) of the Federal Rules of Civil Procedure, the court certified its order directing a verdict on the antitrust counterclaim as final and therefore appealable.

B. The Evidence Relating to the Antitrust Counterclaim.

1. The product involved. Philips sells, among other things, electric shavers under the NORELCO and the SCHICK brand names. There are two styles of electric shavers: rotary and foil. Rotary shavers use high-speed rotating cutters under a circular comb. Foil shavers use vibrating blades under an etched metal foil. Rotary shavers are either cordless rechargeable models or less expensive corded models.

Philips introduced its Norelco rotary shaver in 1948. The first model contained a single head. This was followed by a double- and then a triple-headed shaver; Philips introduced the latter in 1966. The Norelco triple-headed rotary shaver accounts for at least 75 to 80 percent of Philips’ total shaver sales. In 1981, Philips purchased the rights to the SCHICK trademark and used it to market its foil shaver.

2. The rotary shaver market.

a. The relevant market. Philips does not dispute that there was sufficient evidence upon which the jury could have concluded that for antitrust purposes electric rotary shavers constituted a separate market from electric foil shavers. There also was evidence that shavers priced above $30 constituted a separate market from those priced below that amount. Philips has tended to concentrate on the higher priced models, which generally are the cordless or rechargeable shavers. In 1983, the year before Windmere entered the electric shaver market with its Ronson shaver, Philips had 72.8 percent of the sales of above-$30 shavers.

b. The concentration of that market. Prior to the entry of Windmere and Sears Roebuck into the rotary shaver market, Philips’ Norelco shaver was the only product there. Mr. Gould, Windmere’s economist expert, who had worked for the Census Bureau and the Department of Justice, estimated that “in 1985 the Norelco share of the rotary market was of [sic] the order of ninety percent.” Gould, who had studied the concentration ratios of more than 400 industries, testified that Norelco’s share of the rotary market was “the highest figure I have encountered in all of my studies_ Going back thirty years.”

c. Barriers to entry. There was evidence that a recognized brand name was critical to successful entry into the electric shaver market. In 1977, Windmere first attempted to market a foil shaver and used the manufacturer’s name (Payer). The name was not well-known, and the shaver line was discontinued. The president of Windmere testified that Windmere’s customers advised them “that there was no way we could be in the electric shaver industry without a brand. Windmere doesn’t qualify as a national brand that was known in the electric shaver business which is what they told us what [sic] we [698]*698needed.” Although this testimony was admitted with a limiting instruction that it was allowed to show only “state of mind” and not the “truth of the answer,” the fact that Windmere believed that it needed a brand name to succeed in the market is evidence that such a name was necessary.

Philips became aware in February 1980 that Windmere had reached “an understanding” to acquire the SCHICK brand name. Philips subsequently predicted that if anyone bought the SCHICK name and used it to market Izumi rotary shavers, as Windmere was attempting to do, Philips would lose $15 million in sales and $2 million in profit during a three-year period, as well as five points in market share. Philips then bought the rights to the SCHICK brand name and used it to begin marketing a line of foil shavers. A Philips memorandum titled “FOIL SHAVER MARKETING OPPORTUNITY” noted that one “of the factors which have influenced our decision not to market this line [foil shavers] in the past” was because

we [Philips] have been unwilling to commit the tens of millions of dollars required to establish an entirely new shaver brand in the U.S. market.
Now, however, we are faced with a unique opportunity which may never come our way again. An established brand name is available for a relatively small investment. Virtually all roadblocks which have stood in the way of the foil line are eliminated by the availability of the brand name — SCHICK.

Philips’ own economist expert testified that entry into Windmere’s proposed markets was relatively easy. Philips also relied on the fact that following Windmere’s entry into the rotary shaver market in 1984, Windmere obtained 3 to 5 percent of the total electric shaver market.

d. Windmere’s entry into the rotary shaver market and Philips’ response. As noted, in 1977 Windmere unsuccessfully had attempted to enter the foil shaver market. In the spring of 1984, Windmere again entered the electric shaver market with both foil and rotary shavers manufactured in Japan, which Windmere sold under the RONSON trademark.

Windmere introduced a cordless rotary (model RR-1) shaver for $34.99 and a corded rotary (model RR-2) shaver for $22. Windmere projected that, during its first six months in the shaver business, it would sell 125,000 razors for total dollar sales of more than $3 million. In the last nine months of 1984, Windmere actually sold more than 300,000 units for approximately $6 million.

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Cite This Page — Counsel Stack

Bluebook (online)
861 F.2d 695, Counsel Stack Legal Research, https://law.counselstack.com/opinion/us-philips-corp-and-north-american-philips-corp-v-windmere-cafc-1989.