Top 10 Trademark Cases for the Month of July 2010

1. Osmose, Inc. v. Viance, LLC, No. 09-15563, UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT, 2010 U.S. App. LEXIS 15896, July 30, 2010, Decided, July 30, 2010, Filed

OVERVIEW:  Court required modification of injunction entered in suit claiming that competitor's wood preservative advertisements constituted false advertising in violation of 15 U.S.C.S. § 1125(a) because narrower injunction would address issue of damage to goodwill or market position of manufacturer's product and avoid any possible First Amendment concerns.

CORE TERMS:  decay, advertisement, injunction, micronized, copper, built, literally, testing, safety concerns, rated ...

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2. Zimmerman v. Puccio, No. 09-1416, UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT, 2010 U.S. App. LEXIS 15315, July 27, 2010, Decided

OVERVIEW:  As business that held itself out as able to help consumers rebuild, reestablish, and restore credit was credit repair organization under Credit Repair Organizations Act, district court properly pierced corporate veil to find individual appellants personally liable under 15 U.S.C.S. § 1679b(a)(3) for misrepresenting that business was nonprofit.

CORE TERMS:  repair, consumer, credit rating, entity, summary judgment, counseling, corporate veil, piercing, misleading, for-profit ...

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3. Race Tires Am., Inc. v. Hoosier Racing Tire Corp, No. 09-3989, UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT, 2010 U.S. App. LEXIS 15233, April 14, 2010, Argued, July 23, 2010, Filed,  As Amended August 3, 2010.

OVERVIEW:  Defendants were properly granted summary judgment in tire supplier's action under §§ 1 and 2 of Sherman Act because defendant competitor had not coerced or interfered with decisions of defendant sanctioning body or other sanctioning bodies to adopt single tire rule in sport of dirt oval track racing and to enter into exclusive supply contracts.

CORE TERMS:  tire, sanctioning, supplier, racer, racing, track, driver, antitrust, exclusive contracts, dirt ...

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4. Sensient Techs. Corp. v. SensoryEffects Flavor Co., No. 09-2686, UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT, 2010 U.S. App. LEXIS 14964, March 9, 2010, Submitted, July 21, 2010, Filed

OVERVIEW:  A competitor's two customer presentations, press release, announcement, and website using its initial mark were not enough for "use in commerce" under 15 U.S.C.S. §§ 1114(1)(a), 1125(a)(1)(A), 1127, since no goods were sold or transported with that mark, thus, summary judgment on a seller's infringement claim was affirmed.

CORE TERMS:  flavor, customer, sensoryflavors, commerce, trademark, similarity, infringement, dilution, summary judgment, infringer ...

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5. Reckitt Benckiser Inc. v. EPA, No. 09-1314 Consolidated with No. 09-5437, UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT, 2010 U.S. App. LEXIS 14646, May 14, 2010, Argued, July 16, 2010, Decided,  THIS OPINION IS SUBJECT TO FORMAL REVISION BEFORE PUBLICATION IN THE FEDERAL REPORTER OR U.S. APP. D.C. REPORTS. USERS ARE REQUESTED TO NOTIFY THE CLERK OF ANY FORMAL ERRORS IN ORDER THAT CORRECTIONS MAY BE MADE BEFORE THE BOUND VOLUMES GO TO PRESS.

OVERVIEW:  Because the EPA steadfastly declined to bring pesticide registration cancellation proceedings under 7 U.S.C.S. § 136d as requested and unequivocally stated a manufacturer's complying products would be considered misbranded after a given date, the manufacturer's challenge was ripe for review; dismissal for lack of jurisdiction was reversed.

CORE TERMS:  epa, fifra, misbranding, cancellation, pesticide, registration, misbranded', reregistration, registered, registrant ...

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6. Glidden Co. v. Kinsella, No. 09-3599, UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT,  10a0432n.06;, 2010 U.S. App. LEXIS 14495; 2010 FED App. 0432N (6th Cir.), July 15, 2010, Filed,  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION. SIXTH CIRCUIT RULE 28 LIMITS CITATION TO SPECIFIC SITUATIONS. PLEASE SEE RULE 28 BEFORE CITING IN A PROCEEDING IN A COURT IN THE SIXTH CIRCUIT. IF CITED, A COPY MUST BE SERVED ON OTHER PARTIES AND THE COURT. THIS NOTICE IS TO BE PROMINENTLY DISPLAYED IF THIS DECISION IS REPRODUCED.

OVERVIEW:  Court properly adopted modified memorialization of oral settlement agreement because (1) settlement could have been enforced because agreement was clear and unambiguous, there was an objective meeting of minds, and an agreement was therefore reached on all material terms; and (2) memorialization was not materially different than oral agreement.

CORE TERMS:  memorialization, settlement, settlement agreement, prepare, internet, web, essential terms, material terms, glue, deadline ...

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7. Tana v. Dantanna's, No. 09-15123, UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT, 2010 U.S. App. LEXIS 14514, July 15, 2010, Decided, July 15, 2010, Filed

OVERVIEW:  There was very little likelihood of confusion between California restaurant with common law trademark and Georgia restaurants with similar federally registered trademark, as cuisine, ambiance, and advertising channel differed; the geographic locations were far apart; and there was no evidence that defendants intended to trade on plaintiff's mark.

CORE TERMS:  restaurant, trademark, summary judgment, trademark infringement, secondary meaning, user's, Lanham Act, likelihood-of-confusion, registration, similarity ...

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8. United States v. Sweeney, No. 09-1759      , No. 09-1823, UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT, 2010 U.S. App. LEXIS 14247, February 10, 2010, Submitted, July 13, 2010, Filed

OVERVIEW:  The evidence was sufficient to convict defendants of the illegal manufacturing and distributing of cable descramblers, in violation of 47 U.S.C.S. § 553, including evidence that there was no purpose for the nonaddressable feature of the descramblers that defendants' company produced and sold other than facilitating the theft of cable programming.

CORE TERMS:  descrambler, cable, structuring, currency, reporting requirements, infringement, signal, interception, conspiracy, unauthorized ...

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9. Sabinsa Corp. v. Creative Compounds, LLC, No. 08-3255, UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT, 609 F.3d 175; 2010 U.S. App. LEXIS 14023, May 13, 2009, Argued, July 9, 2010, Opinion Filed

OVERVIEW:  In a trademark infringement suit under the Lanham Act regarding weight management products, the trademark owner demonstrated a likelihood of confusion because, inter alia, the most important factors, mark similarity and mark strength, favored the trademark owner, and the parties sold the same product through the same channels of trade.

CORE TERMS:  consumer, customer, forskohlin, lean, weigh, similarity, coleus, undisputed, sophistication, nutraceutical ...

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10. Lorillard Tobacco Co. v. Engida, Nos. 08-1037, 08-1334, UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT, 2010 U.S. App. LEXIS 14028, July 9, 2010, Filed

OVERVIEW:  A district court's award of attorney's fees to defendant under both the Lanham Act and Colorado law was reversed because defendant was not a prevailing party under 15 U.S.C.S. § 1117(a) and because plaintiff's appellate matters could not reasonably have been viewed as frivolous or groundless under Colorado law.

CORE TERMS:  attorney's fees, prevailing party, preliminary injunction, Lanham Act, fee award, notice, frivolous, vexatious, substantial justification, injunction ...

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