22
Apr/14

Bringing Summary Judgment Prior To The Close Of Discovery: In This Instance, Not A Good Use of Anyone’s Time


Plaintiff seeks summary judgment that the term COLLECTIVE is descriptive as used by Defendant/Counterclaim Plaintiff. Defendant owns COLLECTIVE NETWORK, COLLECTIVE VIDEO and C COLLECTIVE THE AUDIENCE ENGINE. Defendant has used its oldest mark for at least nine years and has owned a registration for 5, but no 8/15 accepted yet. Also, there are allegations of widespread third=-party use. Plaintiff brought summary judgment two months before the end of discovery, and before defendant conducted any surveys.

Held: The Court can decide at this time that the mark is descriptive (I think it means ‘inherently descriptive’) but discovery should be completed to determine the strength of the mark.

cross commerce v collective.pdf

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