Opinion
2016-2497
06-07-2018
CONVERSE, INC., Appellant v. INTERNATIONAL TRADE COMMISSION, Appellee SKECHERS U.S.A., INC., WAL-MART STORES, INC., NEW BALANCE ATHLETICS, INC., FKA NEW BALANCE ATHLETIC SHOE, INC., HU LIQUIDATION, LLC, FKA HIGHLINE UNITED LLC, Intervenors
NOTE: This order is nonprecedential. Appeal from the United States International Trade Commission in Investigation No. 337-TA-936.
SUA SPONTE
Before DYK, O'MALLEY, and HUGHES, Circuit Judges. PER CURIAM.
ORDER
This case, having been submitted after oral argument on February 8, 2018,
IT IS ORDERED THAT:
No later than June 27, 2018, the parties shall file simultaneous letter briefs, not to exceed 15 double-spaced pages, addressing the following. Under Aromatique, Inc. v. Gold Seal, Inc., 28 F.3d 863, 870 (8th Cir. 1994), and related cases, the presumption of secondary meaning applies only from the date of registration forward. Accordingly:
1. Was Converse required to show priority in the mark (i.e., secondary meaning at the time of first infringement) without regard to the presumption of validity that would exist if its trademark registration is valid?
2. What significance does the registration of the mark or its validity have in these proceedings?
3. Was it necessary or appropriate for the ITC to address the validity of the registered mark?
FOR THE COURT June 7, 2018
Date
/s/ Peter R. Marksteiner
Peter R. Marksteiner
Clerk of Court