1/31/2024 0 Comments Words of wonder level 83The defendant contends that it is entitled to summary judgment because its use of the phrase "the dentists' choice" has been fair use within the meaning of the Lanham Act. "The dentists' choice" phrase never appears without the prominently displayed CREST trademark, explanatory text or the American Dental Association endorsement. All CREST advertisements also include an endorsement by the American Dental Association. These advertisements also feature the CREST trademark and often make textual reference to dentists' recommendations and endorsements. In the second set of advertisements, the phrase "The dentists' choice" appears without immediate modifiers at the bottom of a print advertisement. In the first set of advertisements, the phrase "The dentists' choice for fighting cavities," or similar phrase, appears at the bottom of a print advertisement in which the CREST trademark is prominently featured in conjunction with varying textual comments. Accompanying its summary judgment motion, the defendant submitted all of the forms of CREST advertising and promotion that have included the phrase "the dentists' choice." Although there are certainly variations among the different advertisements, they can be loosely separated into two categories. THE DEFENDANT'S USE OF "The Dentists' Choice"Īn initial description of the defendant's use of the subject phrase is required. Against this backdrop of summary judgment jurisprudence, we turn to the defendant's motions. In what has now been dubbed the 1986 Supreme Court "trilogy," the Court reaffirmed its support for Rule 56 as an important procedural tool. In determining whether that burden is met, however, the court must draw all reasonable inferences and resolve all ambiguities in favor of the non-moving parties. 56(e), and there must be more than merely "some metaphysical doubt as to material facts." Matsushita Elec. They "must set forth specific facts showing that there is a genuine need for trial," Fed.R.Civ.P. If that burden is met, the non-moving parties cannot simply rest on their complaint setting forth a valid cause of action. 56(c) provides that summary judgment is appropriate if "there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." The burden is on the moving party to demonstrate the absence of a material, factual dispute. Both parties have moved for summary judgment.įed.R.Civ.P. In defense of the action, the defendant primarily contends that it is not using "the dentists' choice" as a trademark but only fairly and in good faith to describe CREST toothpaste, that there is no likelihood of confusion, that DENTISTS CHOICE does not have a distinctive quality, and that the plaintiff has acquired no bona fide trademark rights because the products on which the trademark has been used have been sold in violation of federal law. The plaintiff's complaint charges the defendant with trademark infringement in violation of section 32 of the Lanham Act, use of a false designation of origin in violation of section 43(a) of the Lanham Act, dilution of plaintiff's trademark rights in violation of section 368-c of the New York General Business Law and common law unfair competition. The defendant did not discontinue use of the phrase, and the plaintiff commenced suit in April 1988. In September 1987, the plaintiff became aware of the defendant's use of the phrase and sent Procter & Gamble a cease and desist letter. Since approximately July 1986, the defendant, Procter & Gamble Co., an Ohio corporation, has utilized the phrase "the dentists' choice" in its advertising and promotion of regular and tartar control CREST toothpaste. The plaintiff in this action, Wonder Labs, Inc., is a New York corporation that from approximately 1970 through 1987 manufactured, sold and distributed a toothbrush called "Dentist's Choice." On November 14, 1972, Wonder Labs obtained a registration for the trademark "DENTISTS CHOICE" for use on toothbrushes. Lewis, of counsel), Dinsmore & Shohl, Cincinnati, Ohio (Thomas S. Robin, Blecker, Daley & Driscoll, New York City (Marie V. Lilling, Talay Hafiz, of counsel), for plaintiff. *1059 *1060 Lilling & Greenspan, White Plains, N.Y.
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