NEW ORLEANS — In a July 18 holding, a per curiam Fifth Circuit U.S. Court of Appeals panel refused to undo a Texas federal jury’s determination that a trademark infringement plaintiff failed to rebut a presumption of intent not to resume use of the “Cowboy Little Barrel” (CLB) trademark after years of nonuse (Allied Lomar Inc. v. Lone Star Distillery LLC, et al., No. 17-50148, 5th Cir., 2018 U.S. App. LEXIS 19865).
WASHINGTON, D.C. — Although avoiding the “far thornier question” of whether written standards for commercial and industrial endeavors retain intellectual property protection after they are incorporated by reference into law, the District of Columbia Circuit U.S. Court of Appeals on July 17 reversed and remanded a grant of summary judgment in favor of several private organizations that allege that their standards were infringed (American Society for Testing and Materials, et al. v. Public.Resource.org Inc., No. 17-7035, D.C. Cir., 2018 U.S. App. LEXIS 19603).
WASHINGTON, D.C. — Upon de novo review, the District of Columbia U.S. Circuit Court of Appeals on July 17 upheld a District of Columbia federal judge’s determination that isolated internet-based contacts with the United States are insufficient grounds to support specific personal jurisdiction in a dispute over streamed movies (Triple Up Ltd. v. Youku Tudou Inc., No. 17-7033, D.C. Cir., 2018 U.S. App. LEXIS 19699).
CINCINNATI — In a June 13 reply brief, the operator of a Nashville, Tenn., restaurant asks the Sixth Circuit U.S. Court of Appeals to reverse a trial court’s finding that it did not have standing to seek cancellation of a rival restaurant’s “Whiskey Row” trademark, asserting that it established a likelihood of confusion (The Row Inc. v. Rooke LLC, No. 18-5068, 6th Cir.).
DENVER — A stipulated dismissal with prejudice of allegations of trade dress infringement did not render a defendant the prevailing party for purposes of awarding attorney fees, the 10th Circuit U.S. Court of Appeals ruled June 26 (XClear Inc. v. Focus Nutrition LLC, No. 17-4126, 10th Cir., 2018 U.S. App. LEXIS 17363).
NEW YORK — In a July 6 summary order, the Second Circuit U.S. Court of Appeals upheld a New York federal judge’s determination that a New York playwright’s use of elements from “How the Grinch Stole Christmas!” was parodic and thus a fair use of Dr. Seuss Enterprises (DSE) L.P.’s copyright (Matthew Lombardo, et al. v. Dr. Seuss Enterprises L.P., No. 17-2952, 2nd Cir., 2018 U.S. App. LEXIS 18367).
WASHINGTON. D.C. — Twentieth Century Fox Television in a July 9 opposition brief asks the U.S. Supreme Court to deny a record label’s petition for certiorari in a trademark lawsuit centering on soundtracks associated with the television series “Empire,” arguing that the petitioner has failed to identify any conflicts with the Lanham Act’s “expressive works” exception or relevant case law in a ruling in Fox’s favor (Empire Distribution Inc.v. Twentieth Century Fox Television, et al., No. 17-1383, U.S. Sup.).
HARTFORD, Conn. — A Connecticut federal judge ruled July 5 that a patent infringement case qualifies as “exceptional,” citing two defaulting defendants’ “deliberate obfuscation” of their identities in an effort to avoid detection (KX Technologies LLC v. Zuma Water Filters Inc., et al., No. 16-1433, D. Conn., 2018 U.S. Dist. LEXIS 111536).
SAN FRANCISCO — In a June 29 holding, the Ninth Circuit U.S. Court of Appeals distinguished the U.S. Supreme Court’s rulings on laches in the context of copyright and patent law with that of trademark law, finding that because there is no statute of limitations in the Lanham Act, laches is an available defense to a claim seeking cancellation of the “Lush” mark (Pinkette Clothing Inc. v. Cosmetic Warriors Limited, No. 17-55325, 9th Cir., 2018 U.S. App. LEXIS 17901).
DALLAS — A federal judge in Texas on June 27 entered final judgment in a breach of contract, copyright and trademark infringement and misappropriation of trade secrets lawsuit, ordering that a defendant in the action pay $250 million plus pre- and post-judgment interest after a jury found that several defendants violated the terms of a nondisclosure agreement (NDA) and engaged in false designation in connection with their use of the companies’ proprietary information to develop certain virtual reality (VR) technology (ZeniMax Media Inc., et al. v. Oculus VR Inc., et al., No. 14-cv-1849, N.D. Texas, Dallas Div., 2018 U.S. Dist. LEXIS 107420).
LOS ANGELES — The National Collegiate Athletic Association (NCAA) and the operators of California vehicle dealerships on June 26 filed a stipulation of dismissal of the NCAA’s claims for trademark infringement and violation of California’s unfair competition law (UCL), stating that they have reached a confidential settlement of the dispute (National Collegiate Athletic Association v. Ken Grody Management Inc., et al., No. 8:18-cv-00153, C.D. Calif.).
DENVER — A recent Ninth Circuit U.S. Court of Appeals trade dress ruling “is far afield” from the present case, a ceramics firm tells the 10th Circuit U.S. Court of Appeals in a June 26 letter brief opposing its rival’s claim of supplemental authority supporting its asserted trade dress rights in the pink color of artificial hip joints (C5 Medical Werks LLC, et al. v. CeramTec GmbH, No. 17-1173, 10th Cir.).
YOUNGSTOWN, Ohio — A federal judge in Ohio issued rulings on June 22 that granted a franchisor’s motion to enjoin a franchisee from opening an unauthorized location in San Diego and denying the defendants’ motion to dismiss or transfer the suit, holding that the franchisor demonstrated a high likelihood of success on its claims for trademark infringement, trade secret violations and irreparable harm (Handel’s Enterprises Inc. v. Kenneth S. Schulenburg, et al., No. 18CV508, N.D. Ohio, 2018 U.S. Dist. LEXIS 104851).
WASHINGTON, D.C. — A decision by the Trademark Trial and Appeal Board to uphold an examiner’s rejection of the “Aquapel” mark for use in connection with leather or imitation leather home goods was affirmed June 13 by the Federal Circuit U.S. Court of Appeals, which agreed that the registration would likely cause confusion with the registered mark “Aquapel” (In re: Halo Leather Limited, No. 17-1849, Fed. Cir., 2018 U.S. App. LEXIS 16135).
SYRACUSE, N.Y. — A New York federal judge on June 19 granted RE/MAX LLC’s motion for a default judgment against former franchisees, awarding the franchisor $231,989.23 in actual damages and issuing a permanent injunction enjoining the former franchisees from using, imitating, copying, duplicating or otherwise making use of RE/MAX marks (RE/MAX, LLC v. Robert Goodman Realty, LLC, et al., No. 17-0526, N.D. N.Y., 2018 U.S. Dist. LEXIS 101788).
SAN FRANCISCO — A California federal judge did not err in granting Jack in the Box Inc. (JIB) summary judgment on its allegations that a franchisee committed breach of contract and trademark infringement, the Ninth Circuit U.S. Court of Appeals ruled June 18 in a per curiam opinion (Jack in the Box Inc. v. Deepak Mehta, et al., No. 17-15336, 9th Cir., 2018 U.S. App. LEXIS 16362).
SAN FRANCISCO — A California federal judge erred when dismissing a trademark infringement complaint on grounds of trademark invalidity, as well as in his subsequent order canceling the “Mastermind” trademark, the Ninth Circuit U.S. Court of Appeals ruled June 15 (Raul Caiz v. William Leonard Roberts II, et al., No. 17-55051, 9th Cir., 2018 U.S. App. LEXIS 16171).
CINCINNATI — A Kentucky federal judge did not err in finding that two distillery operators adopted the “Old Taylor” name descriptively and in good faith, thus entitling them to a fair use defense to allegations of trademark infringement, the Sixth Circuit U.S. Court of Appeals ruled June 14 (Sazerac Brands LLC v. Peristyle LLC, et al., No. 17-5933, -5997, 6th Cir., 2018 U.S. App. LEXIS 15940).
NEW ORLEANS — A corporate trademark infringement claim was properly granted dismissal for lack of personal jurisdiction because the corporation has never solicited business in Texas, maintains no physical presence in Texas, and its owner and co-defendant was only ever in Texas on a flight layover, the Fifth Circuit U.S. Court of Appeals affirmed June 13 (GreatFence.com Inc. v. A Great Fence LLC, et al., No. 17-20487, 5th Cir., 2018 U.S. App. LEXIS 15888).
NEW YORK — In a June 13 letter motion, plaintiffs’ attorneys requested a two-week extension to file objections to a June 8 New York federal magistrate judge’s recommendation that they be awarded a default judgment on just three of seven counts of copyright infringement (Conan Properties International LLC, et al. v. Ricardo Jové Sanchez, No. 17-162, E.D. N.Y., 2018 U.S. Dist. LEXIS 98631).