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Intellectual Property Law

Seattle Trademark Lawyer

Reports on trademark law developments from Seattle and beyond. Covers trademark infringement, dilution, cybersquatting, right to publicity, domain name disputes, and the like, with an emphasis on happenings in the Seattle area and Ninth Circuit.
By Michael Atkins

Post Frequency: 5.4/day

Last Entry: March 30, 2011 at 00:20:04

Western District Denies Cake Boss Star's Motion to Dismiss

Posted on September 08, 2010
“Cake Boss” star Buddy Valastro Buddy Valastro remains in the mix. On Sept. 3, the Western District denied “Cake Boss” star Bartolo Valastro’s motion to dismiss Masters Software, Inc.’s claims against him for lack of personal jurisdiction and for failure to state a claim...

Ninth Circuit Modifies Tests for Laches and Acquiescence

Posted on September 07, 2010
Counterclaim plaintiff Joe Kennedy, owner of counterclaim plaintiff Kennedy Center for Real Estate Education, Inc., created an educational curriculum called the “Accredited Seller Representative” (ASR) program. Counterclaim plaintiffs developed and registered several trademarks in connection with their ASR program...

Rosetta Stone v. Google Keyword Advertising Case Explained

Posted on September 02, 2010
Likelihood of Confusion’s got a nice summary of the Aug. 3 Rosetta Stone v. Google keyword advertising decision, cribbed from Jane Coleman’s forthcoming update to her book on secondary trademark infringement. It nicely synthesizes recent case law on contributory liability, including Second Circuit’s April 1 decision in Tiffany v...

Judge to Defendant: Take Down Web Site or Pay $100 Per Day Sanction

Posted on September 01, 2010
Screen shot from defendant’s Web site James Garcia’s having a tough time of it. In August, Western District Judge Richard Jones gave the owner of defendant Seattle Roof Brokers a choice: either publish a statement on his Web site linking to the court’s order finding him liable for making false statements about plaintiff Certainteed Corp...

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Nickelodeon's "Visual System" Functional, Not Protectable as Trade Dress

Posted on August 30, 2010
Plaintiff and counterclaim defendant The Jumpitz Corp. is a San Diego-based performance group that performs live song and dance for preschool-aged children. It also markets itself through its Web site, www.jumpitz.com. It first used the JUMPITZ mark in December 2007...

Ninth Circuit Finds Infringement Not Willful, Refuses Award of Profits

Posted on August 25, 2010
HydraMedia Corp. appealed the Central District of California’s finding that Hydra Media Group Inc.’s trademark infringement was not willful. On Aug. 12, the Ninth Circuit affirmed. The way the Ninth Circuit tells the story, it’s pretty clear-cut...

Delicious Trademark Dispute Not Appropriate for Summary Judgment

Posted on August 24, 2010
Trademark disputes aren’t usually appropriate for being decided on summary judgment. That’s what the Ninth Circuit reiterated last week in Fortune Dynamic, Inc. v. Victoria’s Secret Stores Brand Management, Inc. In that case, Victoria’s Secret sold or gave away hot pink tank tops with the word “Delicious” printed across the front...

Seattle Biotech Companies Fight Over Allegedly Similar Names

Posted on August 23, 2010
Plaintiff’s and defendant’s logos Plaintiff Mirina Corp. is a Seattle-based biotech firm. Defendant Marina Biotech is a Bothell, Wash.-based biotech firm. According to plaintiff’s complaint, both companies promote RNA-based therapeutic research and drug development services...

Copyright Act Preempts Overlapping Right of Publicity Claim

Posted on August 18, 2010
Plaintiff Ashley Gasper is an adult video star who performs under the name Jules Jordan. Mr. Gasper sued 1444942 Canada Inc., d/b/a Kaytel Video Distribution, and other defendants in the Central District of California for copyright infringement and for violating his right of publicity on the ground that defendants allegedly copied and sold 13 DVDs featuring his performances...

Western District Reduces Jury's $10M False Advertising Damages to $500k

Posted on August 17, 2010
National Products, Inc., sued Gamber-Johnson LLC in the Western District for false advertising. At issue in the suit, discussed here and here, was Gamber-Johnson’s promotional video that favorably compared the safety benefits of Gamber-Johnson’s emergency vehicle laptop mounting system with one developed by National Products (NPI)...

Without Resulting Prejudice, Five Year Delay Does Not Support Laches Defense

Posted on August 11, 2010
This is a laches case. Derek and Constance Lee Corp. sued Kim Seng Co. for trademark infringement. The Central District of California entered an injunction against Kim Seng. Kim Seng appealed to the Ninth Circuit based on laches. Turns out, Kim Seng waited five years to file suit, which the Ninth Circuit found fell outside the analogous statute of limitations period...

Failure to Attribute Fees to Lanham Act Claim Not Fatal to Fees Award

Posted on August 10, 2010
EchoStar Satellite Corp. sued NDS Group PLC in the Central District of California, alleging that NDS had engaged in unfair business practices that compromised EchoStar’s security system, resulting in millions of dollars in damages. After half a decade of litigation and a four week trial, the jury found for EchoStar in the amount of $45...

Ninth Circuit Concludes Court Erred in Finding "Advertising.com" is Descriptive

Posted on August 09, 2010
One of AOL Advertising’s (top) and Advertise.com’s design marks AOL Advertising, Inc., sued Advertise.com, Inc., for trademark infringement. At issue were AOL’s registered design marks for ADVERTISE.COM. Advertise.com defended on the ground that the marks are generic and, therefore, are not protectable as trademarks...

Citing Broad Scope of Discovery, Western District Grants Motion to Compel

Posted on August 05, 2010
Plaintiff Radiator Express Warehouse, Inc., sued defendant Performance Radiator Pacific, LLC, in the Western District for violating the Lanham Act, among other claims. In discovery, Performance Radiator sought discovery from Radiator Express that supports Radiator Express’ claim that it suffered damages caused by Performance Radiator’s conduct, and documents that support Radiator Express’ allegation that it has been impaired in the management of franchisees and in its financial condition...

Court Finds Tie Goes to Plaintiff's Choice of Washington Forum

Posted on August 04, 2010
Plaintiff Pacific Coast Trailers, LLC, and defendant Cozad Trailer Sales, LLC, both lay claim to the trademark RELIANCE, whose title appears cloudy due to a number of transfers and a bankruptcy. Pacific Coast Trailers (PCT), a Spokane company, filed suit for trademark infringement in the Eastern District of Washington against Cozad, a California company...

Western District Finds Knife Trade Dress Functional, Dismisses Claim

Posted on August 03, 2010
Plaintiff Great Neck Saw Manufacturers, Inc., sued competitor Star Asia U.S.A., LLC, in the Western District for patent and trade dress infringement over the parties’ folding knives. Here’s the claimed trade dress: “the shape, appearance, and location of (a) the blade holder, (b) the upper curve of the handle, (c) the bottom curve of the handle, (d) the upper notch in the handle, (e) the top rivets and pivot pins on the side wall of the handle, (f) the large pivot on the side wall of the handle, (g) the curved front and rear ends of the handle, (h) the handle as viewed from the rear, (i) the handle as viewed from the top, and (j) the handle as viewed from the bottom, as well as (k) the shape, appearance and relative thickness of the layers in the handle as viewed from the top and bottom...

Western District Quashes Subpoena Intended to Learn Owner of Gripe Site

Posted on July 28, 2010
Still anonymous: Screen shot from defendant’s Internet gripe site The anonymous John Doe runs the Internet gripe site, www.SaleHooSucks.com, which criticizes plaintiff SaleHoo Groups, Ltd. SaleHoo is a New Zealand limited liability company that offers a database of wholesalers and brokers of goods that can be sold on eBay, and sells memberships that authorize access to the database...

ABA Journal Reports on Tiffany v. eBay Decision

Posted on July 28, 2010
This month’s ABA Journal has an article on the Second Circuit’s Tiffany v. eBay decision limiting the auction site’s liability for its users’ trademark infringement. The decision has different implications depending on who you ask...

Fourth Circuit Affirms Jury Finding that "See 'N Say" is Famous, Likely Diluted

Posted on July 26, 2010
Heard about this one today, and I do dig dilution. Seems the Fourth Circuit last month affirmed a jury’s curious finding that Mattel, Inc.’s SEE ‘N SAY and THE FARMER SAYS marks are famous and were likely to be diluted by Super Duper, Inc...

Western District Ends Unfair Competition Case with Dismissal without Prejudice

Posted on July 25, 2010
In CertainTeed Corp. v. Seattle Roof Brokers, shingle manufacturer CertainTeed brought suit against James Garcia, a “roof broker,” claiming he had engaged in unfair competition and violated the Washington Consumer Protection/Unfair Business Practices Act...

Court Imposes Injunction Against Producers of "Cake Boss" TV Show

Posted on July 20, 2010
Western District enjoins use of “Cake Boss” for TV Show In Masters Software, Inc. v. Discovery Communications, Inc., a software company with a trademark registration for CAKE BOSS filed suit in the Western District against the producers of the popular television show of the same name...

Ninth Circuit Affirms Dismissal of Beach Boy's Trademark Claims

Posted on July 18, 2010
Beach Boy/Appellant Mike Love Beach Boy Mike Love appealed the dismissal of a derivative suit he brought on behalf of Brother Records, Inc. (“BRI”), the corporation that owns THE BEACH BOYS registered trademark, against the UK-based Sanctuary Records Group, Ltd...

Ninth Circuit Finds Burden of Proving No Nominative Fair Use Rests on Plaintiff

Posted on July 14, 2010
The Ninth Circuit tweaked its approach to the nominative fair use doctrine last week. On July 8, it found that the burden of establishing nominative fair use does not rest with the defendant, as it previously had held. Instead, it is the plaintiff’s burden to prove the defendant’s use is not nominative fair use...

Bottled Water Company Alleges "Cascade Ice" Infringes Its Mark for "Sparkling Ice"

Posted on July 13, 2010
Plaintiff’s “Sparkling Ice” andDefendant’s “Cascade Ice” water products On July 2, Preston, Wash.-based Talking Rain Beverage Co. filed suit in the Western District against Everett, Wash.-based Unique Beverage Co., LLC, for trademark infringement...

Ninth Circuit Decides Trademark Case with an Anti-SLAPP Statute Twist

Posted on July 08, 2010
On July 6, the Ninth Circuit decided a trademark case with an interesting twist. The family-owned Mindys Cosmetics, Inc., sued its attorney for malpractice, breach of fiduciary duty, and conversion. The case concerns advice the attorney gave one of Mindys owners to register in her own name two trademarks the company formerly had owned but whose registrations had expired...

A Typosquatter Tells All, and Defends His Actions

Posted on July 07, 2010
Alf Temme, a self-confessed typosquatter and defendant in a lawsuit Microsoft brought discussed here and here, went public again last week with a guest post in the Seattle P-I titled, “Why I typosquatted and why it should be legal.” In it, he discusses his run-ins with Alaska Airlines, Air France, Dell, and Microsoft, and why the Anticybersquatting Consumer Protection Act makes for bad public policy...

Shingle Manufacturer Obtains Permanent Injunction, with Compliance Options

Posted on July 01, 2010
In CertainTeed Corp. v. Seattle Roof Brokers, a manufacturer of asphalt shingles filed suit against James Garcia, a “roof broker” who allegedly made false statements about CertainTeed’s roofing products. On June 28, Western District Judge Richard Jones granted summary judgment for CertainTeed on its false advertising and Consumer Protection/Unfair Business Practices Act claims, and imposed a permanent injunction...

Ninth Circuit Finds Use of Ordinary Word in Trademark Still Can Dilute

Posted on June 30, 2010
“She sells sea shells by the sea shore. That’s swell, but how about Shell espresso, Tide motor oil, Apple bicycles and Playboy computers? We consider the application of anti-dilution law to trademarks that are also common English words.” One guess which Ninth Circuit judge wrote the this opinion? Judge Alex Kozinski is a great writer...

A Brand Symbolizes a Seller's Credibility

Posted on June 29, 2010
The lead into this article in today’s Oregonian captures the value of a trademark. “Customers swore the credibility of G.I. Joe’s name was the reason they shopped at the longtime sporting goods retailer and when it was changed, the reason they stopped...

Redmond's Black Raven Brewing Company Loses TTAB Fight with Winery

Posted on June 24, 2010
BeauxKat’s (left) and Franciscan’s raven logos Redmond, Wash.’s BeauxKat Enterprises, LLC, filed an intent-to-use application to register BLACK RAVEN BREWING COMPANY as a trademark with the Patent and Trademark Office for beer with “brewing” and “company” disclaimed...

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