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.