Summaries of Selected Opinions, 1119 COBJ, Vol. 48, No. 10 Pg. 82
| Position | Vol. 48, 10 [Page 82] |
U.S. COURT OF APPEALS FOR THE TENTH CIRCUIT
No. 18-4146. Affliction Holdings, LLC v. Utah Vap or Smoke, LLC. 8/27/2019. D.Utah. Judge Lucero. Trademark Infringement
Likelihood of Consumer Confusion
Similarity
Strength of Mark.
Affliction Holdings, LLC (Affliction) is an apparel company that has registered trademarks that include the AFFLICTION Word Mark and a decorative upside-down fleur-de-lis with the words "AFFLICTION LIVE FAST" in Gothic lettering contained inside a circle. Utah Vap or Smoke, LLC (Utah Vap) is an e-cigarette accessory company that also sells promotional apparel. Its marks incorporate a right-side-up decorative fleur-de-lis inside a circle and the words "VAPE AFFLICTION" in a different font than the lettering used in Affliction's mark. Affliction sued Utah Vap for trademark infringement, contending that Utah Vap was selling pro ducts using marks that misrepresented the products as being from Affliction. The district court granted summary judgment for Utah Vap, holding there was no likelihood of confusion between the parties' marks.
Affliction appealed the grant of summary judgment. The Tenth Circuit observed that a trademark-infringement claim requires the plaintiff to establish that it has a legal right to a mark and the defendant's use of a similar mark is likely to generate consumer confusion in the marketplace. Summary judgment is available only if no reasonable juror could find a likelihood of confusion between plaintiff's and defendant's marks. The Tenth Circuit applied the relevant factors for deterrnining a likelihood of confusion and determined that the degree of visual similarity between the marks was high. In addition, Affliction's mark was conceptually and commercially strong; the stronger the trademark, the more likely that encroachment upon it will lead to confusion. Accordingly, a genuine issue of material fact exists about the likelihood of initial interest and post-sale confusion between the marks, and the district court erred in granting summary judgment.
The grant of summary judgment was reversed and the case was remanded for further proceedings.
No. 18-2180. United States v. Romero, Jr.
9/5/2019. D.N.M. Judge Ebel. Motion to Suppress
Probable Cause
Reasonable Suspicion- Resisting Arrest
Mistake of Law.
An officer on patrol observed defendant standing outside a church and looking into a window. The officer approached defendant, who was filling his water bottle and trying to charge his cell phone. The officer gave defendant a series of instructions, which concluded with his command to defendant to get on the ground. When defendant was on the ground, the officer conducted a pat-down search that revealed a knife. The officer then searched defendant and found a gun in his backpack The officer arrested defendant for resisting and failing to obey commands. Defendant was charged with being a felon in possession of a firearm and knowingly possessing a stolen firearm...
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