Excel Dryer accuses Penson & CO. of infringing its trade dress in its XLERATOR restroom air hand dryer. Excel asserts that its patented hand dryer has achieved considerable success, and that it has a distinctive shape and appearance that is associated with Excel.
Excel further asserts that it has already established secondary meaning of its trade dress in a prior proceeding before the International Trade Commission, in which Penson was a respondent, and both a General Exclusion Order and a Cease and Desist Order were entered prohibiting importation of the accused hand dryers. Excel brings charges of trade dress infringement and violation of C. 93A.
