Local Foods, LLC v. Foodsmith Bowen Osborn

16 Cited authorities

Celotex Corp. v. Catrett
477 U.S. 317 (1986) Cited 216,641 times 40 Legal Analyses
Holding that a movant's summary judgment motion should be granted "against a [nonmovant] who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial"
Cunningham v. Laser Golf Corp.
222 F.3d 943 (Fed. Cir. 2000) Cited 72 times 3 Legal Analyses
Finding similarity between LASER for golf clubs and golf balls and LASERSWING for golf practice devices, and noting that "the term ‘swing’ is both common and descriptive" and therefore "may be given little weight in reaching a conclusion on likelihood of confusion"
Imperial Tobacco v. Philip Morris, Inc.
899 F.2d 1575 (Fed. Cir. 1990) Cited 82 times 5 Legal Analyses
Finding that promotional use of a mark on “incidental products” like whiskey, pens, watches, sunglasses, and food did not constitute use of mark for cigarettes
Ritchie v. Simpson
170 F.3d 1092 (Fed. Cir. 1999) Cited 48 times 1 Legal Analyses
Finding “real interest” is shown by “a direct and personal stake in the outcome” or a “legitimate personal interest.”
Del Tabaco v. Gen. Cigar Co.
753 F.3d 1270 (Fed. Cir. 2014) Cited 13 times 5 Legal Analyses
Holding that appellant demonstrated entitlement to a "statutory cause of action" under the Lanham Act
Lyons v. Am. Coll. of Veterinary Sports Med.
859 F.3d 1023 (Fed. Cir. 2017) Cited 7 times 1 Legal Analyses
Upholding decision of USPTO Trademark Trial and Appeal Board that defendant, rather than plaintiff, owned disputed trademark, even though plaintiff had registered the trademark and defendant had not, because defendant was first to use trademark in commerce
Firsthealth v. Carefirst
479 F.3d 825 (Fed. Cir. 2007) Cited 9 times 1 Legal Analyses
Finding no excusable neglect where the second and third factors weighed against such a finding
Opryland USA v. Great American Music Show
970 F.2d 847 (Fed. Cir. 1992) Cited 23 times
In Opryland, Opryland USA opposed the registration of "THE CAROLINA OPRY," arguing that the term was confusingly similar to Opryland's own marks.
Lloyd's Food Products, Inc. v. Eli's, Inc.
987 F.2d 766 (Fed. Cir. 1993) Cited 18 times
Holding that third-party evidence should not be disregarded in evaluating the strength of a mark for purposes of determining the likelihood of confusion
Olde Tyme Foods, Inc. v. Roundy's, Inc.
961 F.2d 200 (Fed. Cir. 1992) Cited 11 times
Stating that "[a]s to strength of a mark . . . [third-party] registration evidence may not be given any weight . . . [because they are] not evidence of what happens in the market place"
Rule 56 - Summary Judgment
Fed. R. Civ. P. 56 Cited 329,337 times 158 Legal Analyses
Holding a party may move for summary judgment on any part of any claim or defense in the lawsuit
Rule 36 - Requests for Admission
Fed. R. Civ. P. 36 Cited 6,109 times 12 Legal Analyses
Noting that facts admitted pursuant to a Rule 36 discovery request are "conclusively established unless the court, on motion, permits the admission to be withdrawn or amended"
Section 1051 - Application for registration; verification
15 U.S.C. § 1051 Cited 3,797 times 123 Legal Analyses
Requiring a filing of a Statement of Use to register a mark
Section 1127 - Construction and definitions; intent of chapter
15 U.S.C. § 1127 Cited 2,946 times 95 Legal Analyses
Granting standing under § 1114 to the legal representative of the registrant of a trademark
Section 2.122 - Matters in evidence
37 C.F.R. § 2.122 Cited 23 times 1 Legal Analyses
Providing that in inter partes proceeding, "[t]he allegation in an application for registration, or in a registration, of a date of use is not evidence on behalf of the applicant or registrant" but, rather, "a date of use of a mark must be established by competent evidence"
Section 2.71 - Amendments to correct informalities
37 C.F.R. § 2.71 Cited 12 times 3 Legal Analyses
The applicant may amend the application during the course of examination, when required by the Office or for other reasons. (a) The applicant may amend the application to clarify or limit, but not to broaden, the identification of goods and/or services or the description of the nature of the collective membership organization. (b) (1) If the verified statement in an application under § 2.33 is unsigned or signed by the wrong party, the applicant may submit a substitute verification. (2) If the verified

Local Foods, LLC v. Foodsmith Bowen Osborn

16 Cited authorities

Holding that a movant's summary judgment motion should be granted "against a [nonmovant] who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial"

Finding similarity between LASER for golf clubs and golf balls and LASERSWING for golf practice devices, and noting that "the term ‘swing’ is both common and descriptive" and therefore "may be given little weight in reaching a conclusion on likelihood of confusion"

Finding that promotional use of a mark on “incidental products” like whiskey, pens, watches, sunglasses, and food did not constitute use of mark for cigarettes

Finding “real interest” is shown by “a direct and personal stake in the outcome” or a “legitimate personal interest.”

Holding that appellant demonstrated entitlement to a "statutory cause of action" under the Lanham Act

Upholding decision of USPTO Trademark Trial and Appeal Board that defendant, rather than plaintiff, owned disputed trademark, even though plaintiff had registered the trademark and defendant had not, because defendant was first to use trademark in commerce

Finding no excusable neglect where the second and third factors weighed against such a finding

In Opryland, Opryland USA opposed the registration of "THE CAROLINA OPRY," arguing that the term was confusingly similar to Opryland's own marks.

Holding that third-party evidence should not be disregarded in evaluating the strength of a mark for purposes of determining the likelihood of confusion

Stating that "[a]s to strength of a mark . . . [third-party] registration evidence may not be given any weight . . . [because they are] not evidence of what happens in the market place"

Holding a party may move for summary judgment on any part of any claim or defense in the lawsuit

Noting that facts admitted pursuant to a Rule 36 discovery request are "conclusively established unless the court, on motion, permits the admission to be withdrawn or amended"

Requiring a filing of a Statement of Use to register a mark

Granting standing under § 1114 to the legal representative of the registrant of a trademark

Providing that in inter partes proceeding, "[t]he allegation in an application for registration, or in a registration, of a date of use is not evidence on behalf of the applicant or registrant" but, rather, "a date of use of a mark must be established by competent evidence"