Cluster 522873

Murphy Door Bed, 874 F.2d at 101 (“Neither statutory law, namely the Lanham Act, nor common law supports a claim for trademark infringement when the mark in question is generic.”) As McCarthy states, “[t]he name of a product or service itself — what it is — is the very antithesis of a mark.” 2 McCarthy on Trademarks and Unfair Competition § 12-1 at 12-3 (4th ed.1999) (hereinafter “McCarthy”).

See Colt Def., 486 F.3d at 706 (finding that articles which “refer to the M4 as a type of carbine with certain characteristics, not a brand of carbine sold by a certain producer” support a determination that the term “M4” is generic); Murphy Door Bed Co. v. Interior Sleep Sys., Inc., 874 F.2d 95 , 101 (2d Cir. 1989) (“[E]vidence . . . of newspaper and magazine use of the phrase Murphy bed to describe generally a type of bed . . . is a strong indication of the general public’…

Even assuming that the holding of Murphy Door is applicable in the Ninth Circuit, however, it does not change the allocation of proof burdens here because the determinative issue is what Cookie Comer claims, not what Cookie Corner is able to prove. 9 Id. (“Thus, critical to a trial court’s allocation of proof burdens is a determination of whether the term at issue is claimed to be generic by reason of common usage or by reason of expropriation.”).

See Volkstuagenwerk Aktiengesellschaft v. Wheeler, 814 F.2d 812, 819 (1987) (“A refusal by the [Trademark Office] to register a mark does not preclude the owner of the mark from his right to use it.” (quoting In re McGinley, 660 F.2d 481 (C.C.P.A.1981)); Murphy Door Bed Co. v. Interior Sleep Systems, 687 F.Supp. 754, 762 (E.D.N.Y.1988) (same; citing Wheeler, 814 F.2d at 819 ), affd in part, rev’d in part on other grounds, 874 F.2d 95 (2d Cir.1989); Irving-Cloud Publishing Co…

The parties’ alternative theory relies on the Second Circuit’s decision in Murphy Door Bed Co. v. Interior Sleep Systems, Inc., 874 F.2d 95, 100-01 (2d Cir. 1989), shifting the burden to the alleged infringer of an unregistered mark to prove its defense that the mark has undergone genericide.

The parties’ alternative theory relies on the Second Circuit’s decision in Murphy Door Bed Co. v. Interior Sleep Systems, Inc., 874 F.2d 95, 100-01 (2d Cir. 1989), shifting the burden to the alleged infringer of an unregistered mark to prove its defense that the mark has undergone genericide.

The parties’ alternative theory relies on the Second Circuit’s decision in Murphy Door Bed Co. v. Interior Sleep Systems, Inc., 874 F.2d 95, 100-01 (2d Cir. 1989), shifting the burden to the alleged infringer of an unregistered mark to prove its defense that the mark has undergone genericide.

In other words, Exhibit 7 seems to be related to products that Defendant sold, not goods that Defendant bought. has not heretofore), the court should estimate them based on the evidence before it.” Id. at 98, 103.

Indeed, some courts have awarded “great deference . . . to the [US]PTO’s decisions.” See, e.g., M & G Electronics Sales Corp. v. Sony Kabushiki Kaisha, 250 F. Supp. 2d 91, 98 (E.D.N.Y. 2003); Murphy Door Bed Co., Inc. v. Interior Sleep Systems, Inc., 874 F.2d 95, 101 (2d Cir. 1989) (stating that “the decision of the [US]PTO is to be accorded great weight”); Schutte Bagclosures v. Kwik Lok Corporation, 193 F. Supp. 3d 245 , 258–59 (S.D.N.Y. 2016) (same). ii.

Murphy Door, 874 F.2d at 101; M & G Elecs.

Co. v. Interior Sleep Systems, Inc., 874 F.2d 95, 103 (2d Cir.1989)), and that the contemnor bears the burden of proving costs and their eontribution to the infringing item.

Murphy Door Bed Co. v. Interior Sleep Systems, Inc., 874 F.2d 95, 100 (2d Cir.1989).

The existence of a dictionary defi nition of the word “Tastemaker,” on or before the date that Defendants claim to have created their mark, suggests that this is not a situation where the “public is said to have expropriated a term established by [the] product developer.” Murphy Door Bed, 874 F.2d at 101.

See In re Bayer Aktiengesellschaft, 488 F.3d 960, 963 (Fed.Cir.2007) (Webster's Third); Colt Defense, 486 F.3d at 710 (Webster's Third); Murphy Door, 874 F.2d at 101 (Webster's Third); Liquid Controls, 802 F.2d at 936 (Random House). 8 .

Moreover, as reflected in the briefs on the motion for summary judgment and the motion for reconsideration, Hickory Farms has had a checkered history of enforcing its rights in the marks at issue. 3 In any event, as other courts have held, once a “mark has ‘entered the public domain beyond recall,’ policing is of no consequence to a resolution of whether a mark is generic.” See The Murphy Door Bed Co. v. Interior Sleep Systems Inc., 874 F.2d 95, 101 (2d Cir.1989).

Moreover, as reflected in the briefs on the motion for summary judgment and the motion for reconsideration, Hickory Farms has had a checkered history of enforcing its rights in the marks at issue. 3 In any *801 event, as other courts have held, once a “mark has ‘entered the public domain beyond recall,’ policing is of no consequence to a resolution of whether a mark is generic.” See The Murphy Door Bed Co. v. Interior Sleep Systems Inc., 874 F.2d 95, 101 (2d Cir.1989).

The parties disagree, however, on whether the mark “Kosher Yellow Pages” is as generic as its component parts. 28 Dictionary definitions are relevant in assessing a mark’s genericness “because they reflect the general public’s perception of a mark’s meaning and implication.” Murphy Door Bed, 874 F.2d at 101.

Id. at 98.

Yang applied the exception established by the Second Circuit in Murphy Door Bed Co. v. Interior Sleep Systems, Inc., 874 F.2d 95, 101 (2d Cir.1989).

Thus, Yellow Cab of Sacramento's argument that the plaintiff should not have to assume the burden of proof until the defendant proves that the term in question was generic prior to the plaintiff's use runs counter to trademark theory, and we must reject it. 8 The Second Circuit has created an exception to the general rule, upon which Yellow Cab of Sacramento also relies, that "where the public is said to have expropriated a term established by a product developer, the burden…

The Second Circuit has created an exception to the general rule, upon which Yellow Cab of Sacramento also relies, that “where the public is said to have expropriated a term established by a product developer, the burden is on the defendant to prove genericness.” Murphy Door Bed Co. v. Interior Sleep Systems, Inc., 874 F.2d 95, 101 (2nd Cir.1989).

Id. at 101.

Cf. Murphy Door Bed, Co. v. Interior Sleep Systems, Inc., 874 F.2d 95, 103 (2d Cir.1989) (“in computing plaintiffs lost profits for copyright infringement award, costs necessary to generate the income should be deducted from sales revenue” (citation omitted)).

See Talk to Me Products, Inc. v. Larami Corp., 992 F.2d 469, 470 (2d Cir.1993); Murphy Door Bed Co., Inc. v. Interior Sleep Systems, Inc., 874 F.2d 95, 102 (2d Cir.1989).

The Murphy Door Bed Co., Inc. v. Interior Sleep Systems, Inc., 874 F.2d 95, 101 (2d Cir.1989).

See Kellogg Co. v. Nat’l Biscuit Co., 305 U.S. 111 , 59 S.Ct. 109 , 83 L.Ed. 73 (1938); Murphy Door Bed Co., Inc. v. Interior Sleep Systems, Inc., 874 F.2d 95, 102 (2d Cir.1989); Blinded Veterans Ass’n v. Blinded Am.

A descriptive term may be generic for a designation ab initio, see In re Northland Aluminum Products, Inc., 777 F.2d 1556, 1558-59 , 227 USPQ 961, 962-63 (Fed.Cir.1985), or it may become generic over time through common usage if the otherwise nondescriptive term is not policed as a trademark and it is commonly used to describe a type of product, see Murphy Door Bed Co. v. Interior Sleep Systems, Inc., 874 F.2d 95, 100 , 10 USPQ2d 1748, 1752 (2d Cir.1989).

A descriptive term may be generic for a designation ab initio, see In re Northland Aluminum Products, Inc., 777 F.2d 1556, 1558-59 , 227 USPQ 961, 962-63 (Fed.Cir.1985), or it may become generic over time through common usage if the otherwise non-deseriptive term is not policed as a trademark and it is commonly used to describe a type of product, see Murphy Door Bed Co. v. Interior Sleep Systems, Inc., 874 F.2d 95, 100 , 10 USPQ2d 1748, 1752 (2d Cir.1989).

The defendant makes the bold statement that “[t]he evidence of dictionaries that do not contain the word Urantia is completely irrelevant.” (Def.’s Br. at 9.) It strains my imagination to think of a product name “that over time the public adopted, or, rather, expropriated, ... as a synonym for any [product of that genus],” Murphy Bed, 874 F.2d at 101, but which does not appear in any known dictionary.

Moreover, even if Sterling’s trademark rights were not violated, injunctive relief would be proper here because defendants’ conduct violated its contractual obligations with respect to the name “Bayer.” See Murphy Door Bed Co. v. Interior Sleep Systems, Inc., 874 F.2d 95, 102 (2d Cir.1989).

Murphy Door Bed Co. Inc., v. Interior Sleep Systems, Inc., 874 F.2d 95, 101 (2d Cir.1989).

Of course, by "profits" we mean net profits, see Murphy Door Bed Co. v. Interior Sleep Systems, Inc., 874 F.2d 95, 103 (2d Cir.1989); W.E.

Of course, by “profits” we mean net profits, see Murphy Door Bed Co. v. Interior Sleep Systems, Inc., 874 F.2d 95, 103 (2d Cir.1989); W.K Bassett Co. v. Revlon, Inc., 435 F.2d 656, 665 (2d Cir.1970), and note that the burden is on the contemnor “to prove any deductions for its costs from the gross revenues attributable to its contempt,” Oral-B, 810 F.2d at 26 ; cf. Sheldon v. Metro-Goldwyn Pictures Corp., 106 F.2d 45, 54 (2d Cir.1939) (overhead that does not assist in produc…

See Murphy Door Bed Co. v. Interior Sleep Sys., Inc., 874 F.2d 95 , 103 (2d Cir. 1989) (determining that the parties agreed to the defendant’s profits as the measure of damages); see also Crowley v. Billboard Magazine, 576 F. Supp. 3d 132 , 148 n.6 (S.D.N.Y. 2021) (granting summary judgment with respect to issue that opposing party “did not address”); Torcivia v. Suffolk Cty., 17 F.4th 342 , 367 n.40 (2d Cir. 2021) (concluding that party waived argument by failing to oppose …

See id. 7 The district court also considered a fourth survey.

See id.

Goudreau does not explain how reasonable minds might differ in interpreting the restrictions to which he agreed, arguing instead that ambiguity is demonstrated by Scholz’s counsel’s statement at the hearing on the motion to dismiss that Goudreau may say is a “former member of Boston.” D. 95 at 14; see Murphy Door Bed Co. v. Interior Sleep Sys., Inc., 874 F.2d 95 , 102 (2nd Cir.1989) (explaining injunction to prevent trademark infringement was proper where defendant had contr…

See Murphy Door Bed Co. v. Interior Sleep Sys., Inc., 874 F.2d 95 , 101 (2d Cir.1989) (citing Syntex Labs., Inc. v. Norwich Pharmacal Co., 437 F.2d 566, 569 (2d Cir. 1971)) (reaffirming the Second Circuit rule that PTO decisions are to be accorded “great weight”); see also McCarthy § 23:84.

See Murphy Door Bed, 874 F.2d at 101 (concluding that evidence of “numerous examples of newspaper and magazine use of the phrase Murphy bed to describe generally a type of bed” indicated genericness).

See Howard’s Appliance, 874 F.2d at 95 (citing In re Quality Holstein Leasing, 752 F.2d 1009, 1013-14 (5th Cir.1985); In re General Coffee Corp., 828 F.2d 699, 704-07 (11th Cir.1987)). 4 Here, however, appellants were never entitled to own Flanagan’s stock, just to obtain possession of the stock as one step toward execution of a levy on it, pursuant to which a sale would be held and the sale proceeds distributed to Cadle and D.A.N.

See Murphy Door, 874 F.2d at 101; Syntex, 437 F.2d at 569 ; Cullman Ventures, 717 F.Supp. at 120 ; Gucci, 688 F.Supp. at 927 .

See Murphy Door Bed, 874 F.2d at 101 n. 2.

See Murphy Door Bed Co., Inc. v. Interior Sleep Systems, Inc., 874 F.2d 95, 101 (2d Cir.1989).

See Murphy Door Bed Co. v. Interior Sleep Systems, Inc., 874 F.2d 95, 101 (2d Cir.1989); Liquid Controls Corp. v. Liquid Control Corp., 802 F.2d 934, 936 (7th Cir.1986).

See Murphy Door Bed Co. v. Interior Sleep Sys., 874 F.2d 95 , 103-04 (2d Cir.1989).

See generally Murphy Door Bed Co. v. Interior Sleep Sys., Inc., 874 F.2d 95 , 100 (2d Cir.1989) (“[a] term or phrase is generic when it is commonly used to depict a genus or type of product, rather than a particular product”).

Aug. 3, 2011); see also Murphy Door Bed Co., Inc. v. Interior Sleep Sys., Inc., 874 F.2d 95 , 101 (2d Cir.1989).

Schlitz Brewing Co., 605 F.2d 990, 997-98 (7th Cir.1979) (discussing confusion arising from coloring and styling of labels, “advertising calculated to lead to confusion,” or “any cause except [defendant’s] use of the word light in [its] product name”); see also Murphy Door Bed Co. v. Interior Sleep Sys., Inc., 874 F.2d 95 , 102 (2d Cir.1989) (holding that term “Murphy bed” was generic, but competitor engaged in unfair competition “by passing off products of his own manufactu…

See, e.g., Murphy Door Bed Co. v. Interior Sleep Sys., Inc., 874 F.2d 95 , 102 (2d Cir.1989) (although trademark invalid, injunctive relief was properly based on contract rights). 6 .

See, e.g., Murphy Door Bed Co., Inc. v. Interior Sleep Systems, Inc., 874 F.2d 95, 100-102 (2nd Cir.1989) (holding that the term “Murphy Bed” was generic because the public adopted the term through common use to describe a bed that folds into a closet).