8
Sep/06

Attention Should Be Paid To This Case


I apologize for not reporting on this case earlier.
Defendants were a not for profit organization (“NFP”) helping restaurant workers, and a restaurant owned by a workers’ cooperative, in which the NFP had a 40% interest. The NFP protested Plaintiff’s policies relating to its workers. The NFP created a hand-out that reproduced the Plaintiff’s logo on the cover (the hand-out was folded). When opened, the text of the hand-out contained information about the organization’s criticism of Plaintiff (the brochure identifies the NFP as the source and promoted the NFP’s primary mission of helping restaurant workers – and makes no mention of the co-op restaurant).
A reproduction of the leaflet is here.
The hand-out was distributed near Plaintiff’s establishment. Defendant acknowledged that the appearance was intended to induce passers-by to accept the leaflet and read it.
Plaintiff sued on trademark infringement and dilution. The Court denied the motion for preliminary injunction because plaintiff was unable to show irreparable harm; however the Court found that the plaintiff WAS likely to prevail on infringement, having shown a likelihood of confusion, basing its decision that defendant’s use of the tradeamark initially confused passers-by and diverted them to use defendant’s services, namely educating them in its viewpoint.
Prof. Goldman, in discussing this case, refers to it as a travesty and one of the five all time worst initial interest confusion cases of all time (I will be emailing him to obtain the complete list).
Read the case.
SMJ Group. et. al. v. 417 Lafayette Restaurant LLP, 06 CIV 1774 (SDNY July 6, 2006).

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