The Ninth Circuit, in a case of first impression in that circuit, recently adopted the long-standing policy of the U.S. Patent and Trademark Office's ('PTO') Trademark Trial and Appeal Board ('TTAB') that 'use in commerce only creates trademark rights when the use is lawful.'
Ninth Circuit Follows TTAB Policy: Questions Remain As to What Kinds of Unlawful Acts Bar Trademark Rights
The Ninth Circuit, in a case of first impression in that circuit, recently adopted the long-standing policy of the U.S. Patent and Trademark Office's ('PTO') Trademark Trial and Appeal Board ('TTAB') that 'use in commerce only creates trademark rights when the use is <i>lawful</i>.' <i>CreAgri Inc v USANA Health Sciences Inc.</i>, 474 F.3d 626 (9th Cir. 2007). The Ninth Circuit in <i>CreAgri</i> noted that 'at least one [other] circuit has adopted and applied this rule. <i>See United Phosphorous, Ltd. v. Midland Fumigant, Inc.</i>, 205 F.3d 1219, 1225 (10th Cir. 2000).'
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Jane Shay WaldThis premium content is locked for The Intellectual Property Strategist subscribers only
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