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The appellate court held that this use of the [[trademark|mark]] was [[prima facie]] [[trademark infringement|infringing]]. It rejected the defendant’s defense of [[nominative fair use]], on the ground that defendant’s conduct failed to meet the requirement that “the user must do nothing that would, in conjunction with the [[trademark|mark]], suggest [[sponsorship]] or [[endorsement]] by the [[trademark owner|trademark holder]].” Here, the court found that defendant’s “references to Pycnogenol spawn [[likelihood of confusion|confusion]] as to [[sponsorship]] and attempt to appropriate the cachet of the [[trademark]] Pycnogenol to his product.” |
The appellate court held that this use of the [[trademark|mark]] was [[prima facie]] [[trademark infringement|infringing]]. It rejected the defendant’s defense of [[nominative fair use]], on the ground that defendant’s conduct failed to meet the requirement that “the user must do nothing that would, in conjunction with the [[trademark|mark]], suggest [[sponsorship]] or [[endorsement]] by the [[trademark owner|trademark holder]].” Here, the court found that defendant’s “references to Pycnogenol spawn [[likelihood of confusion|confusion]] as to [[sponsorship]] and attempt to appropriate the cachet of the [[trademark]] Pycnogenol to his product.” |
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[[Category:Case-U.S.-Federal]] |
[[Category:Case-U.S.-Federal]] |
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Revision as of 06:49, 10 December 2010
Citation
Horphag Research Ltd. v. Pellegrini, 337 F.3d 1036 (9th Cir. 2003) (full-text).
Factual Background
Plaintiff owned the trademark “Pycnogenol” for a pharmaceutical product. The defendant sold pharmaceuticals, including plaintiff’s product, through a website. The defendant included “Pychogenol” as one of the metatags on the site.
Appellate Court Proceedings
The appellate court held that this use of the mark was prima facie infringing. It rejected the defendant’s defense of nominative fair use, on the ground that defendant’s conduct failed to meet the requirement that “the user must do nothing that would, in conjunction with the mark, suggest sponsorship or endorsement by the trademark holder.” Here, the court found that defendant’s “references to Pycnogenol spawn confusion as to sponsorship and attempt to appropriate the cachet of the trademark Pycnogenol to his product.”