everoastdietz ham

Plaintiff owns the registered EVEROAST trademark for chicken. Its priority date is August 2009. Its former counsel sends a demand letter in 2012 to defendant regarding its common law use of EVERBEST for ham. The complaint states that former counsel had not heard of defendant’s mark prior to then. The defendant says ‘a ha! It is I, defendant, that has priority of March 2009 on you!!! Unregister that registration you are brandishing!! I will use your demand letter to me as evidence of likelihood of confusion!!” And defendant files a cancellation petition. Now plaintiff is seeking a declaration of validity of its registration, and it has to talk its way out of its demand letter.

OK, let’s be clear. I don’t know the background in this matter so my practice pointer is directed towards general situations and not particular ones. General practice pointer: you have to understand the limits of your first use investigation. In this day and age a party’s website is a pretty good indicator of a trademark’s first use date, but it’s not foolproof. You may think you know your adversary’s first use date, but you have to tell your client that when a party’s back is against the wall, it can sometimes come up with some low-key use that wasn’t reported on the Internet. Sometimes, if your priority claim is just a few months or so, it is within a margin of error. You have to evaluate how to phrase the claims in your demand letter (or whether you should send one at all), lest the table gets turned on you and you find yourself telling a judge that you didn’t mean what you said about channels of trade, etc.

everoast
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I read this complaint quickly, so I may have missed something, but I’m puzzled as to exactly how defendant mis-used plaintiff’s mark. I do not see an allegation that defendants (HSN and a terminated distributor) affixed plaintiff’s GreenPan mark to packaging or the product or reproduced the mark in advertising of the complained-of goods. I see an allegation that defendant sold the alleged knock-offs ‘through’ a link that it had previously used to sell plaintiff’s goods, which is referred to as a ‘GreenPan link.’ I’m not sure what the link looked like.

greenpan v hsn
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Defendant (California corp) is in beta-testing phase. For now, it allows users to download its software and embed it on their own sites (the software is a comments plug-in). Several New Yorkers have become registered users (and presumably have downloaded the s/w). Defendant will ultimately monetize by charging users and/or selling ads.

Held: No personal jurisdiction in NY as money hasn’t changed hands.

Hmmm. Defendant allows New Yorkers to try out the software on their (presumably) NY sites. Is there really a different ‘foreseeability of getting hauled into New York’ because money has not yet changed hands, or because they haven’t sold advertising yet?

What if Defendant was mailing free samples of a physical product into NY? Would (should) the absence of a monetary exchange matter for purposes of jurisdictional due process?

bark v barc personal
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charriolalor

Plaintiff Charriol hired defendant A’lor to manufacture jewelry. Plaintff alleges passing off and seeks TRO. SD Cal denies, as plaintiff did not comply with TRO pleading requirements, making only conclusory allegations that defendant would melt the jewelry and destroy its records if notified.

charriol v alor
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Oprah-October-201-Issue

2d Circuit overturns District Court decision as to whether use of OWN YOUR PWOER on cover of Oprah Magazine establishes fair use defense.

oprah own your power
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