25
Oct/05

Sixth Circuit: Right of Publicity / Attorneys Fees Decision


Sixth Circuit discussion of, inter alia, award of attorneys fees under the Lanham Act. Discussion of case by Silicon Valley Media Law Blog here.
Andretti v. Borla Performance Industries, civ 04-1835 (6th Circuit, October 21, 2005).



20
Oct/05

2d Circuit Case On Side-by-Side vs. Serial Viewing


Louis Vuitton brought a trademark, trade dress and related torts action against Burlington Coat Factory, for selling a handbag that, Burlington conceded, ‘brought to mind’ LV’s Murakami Multicolore handbag.  The District Court judge denied LV’s motion for preliminary relief, relying in part on the observation that consumers would not be confused in side-by-side comparisons of the bags.  The Second Circuit overturned.  If the products are not sold side-by-side (as the parties here agreed they were not), then it is legally erroneous to rely on side-by-side impressions.  The proper analysis is whether the overall impressions of the products leads to confusion upon serial viewing.

Tidbit:  LV has sold 47,000 Multicolore bags in the U.S. to date, totaling $25 million in sales.

Louis Vuitton Malletier v. Burlington Coat Factory, 04-2907 (2d Cir, Oct 12 2005).



14
Oct/05

Third Circuit Articulates Nominative Fair Use Test


“In this Circuit, we have today adopted a test for nominative fair use in which a court will pose three questions: (1) Is the use of the plaintiff’s mark necessary to describe both plaintiff’s product or service and defendaant’s product or service? (2) Is only so much of the plaintiff’s mark used as is necessary to describe plaintiff’s products or services? (3) Does the defendant’s conduct or language reflect the true and accurate relationship between plaitniff’s and defendant’s products or services?  If each of these questions can be answered in the affirmative, the use will be considered a fair one, regardless of whether likelihood of confusion exists.”

From Century 21 Real Estate v. Lendingtee, Inc., No. 03-4700 (3d Circuit Oct. 11, 2005).