Plaintiff alleges that it uses the mark HANGINGOUT for a mobile video app. Google adopted GOOGLE HANGOUTS for a mobile video app at a later date. Drafting pointer: It’s advisable, when alleging trademark infringement, to have a straightforward allegation such as “Plaintiff uses the Mark in interstate commerce, and has made such use prior to Defendant.” This complaint doesn’t have such an allegation (or I missed it the three times I looked for one). The complaint does allege that plaintiff owns a pending use-based trademark application. The App Store does carry plaintiff’s app, and indicates that the app was listed prior to Google’s alleged adoption. The absence of a clear-cut allegation of trademark use raised questions as I read the complaint – don’t raise questions in your readers’ minds unnecessarily.
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