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Irked judge in tanning trademark dispute: ‘This is a busy Court’

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A federal judge warned a tanning product maker and lawyers defending it from a trademark infringement claim that they were dangerously close to getting burned.

Indianapolis-based Australian Gold uses the trademark “Live Laugh Tan” in marketing its line of indoor tanning preparations. The company sued Florida-based Devoted Creations after it began selling products using the mark, “Live Love Tan.” Australian Gold claims trademark infringement and unjust enrichment.

Devoted Creations petitioned the U.S. District Court for the Southern District of Indiana to dismiss the complaint, Australian Gold, LLC v. Devoted Creations, LLC, 1:13-cv-00971-JMS-DML, but Judge Jane Magnus-Stinson issued an order tersely denying the motion. Devoted Creations argued that its use of the mark on tanning products could not infringe on Australian Gold’s use of its trademark on tote bags.

“In light of this allegation, Devoted Creations’ argument must be premised on one of two things: either that the Court will not read the Complaint (which alleges facts contrary to Devoted Creations’ position) or will not apply the correct standard of review,” Magnus-Stinson wrote in an order signed Wednesday. “It goes without saying that neither of these premises is true.

“Devoted Creations’ sole argument is a nonstarter on both the facts and the law, particularly on a motion to dismiss,” she wrote. “This is a busy Court that, of course, prefers to focus its efforts on motions that at least arguably have merit. The Court therefore reminds Devoted Creations and its counsel that it must be cognizant of the ethical duties under both Federal Rule of Civil Procedure 11(b)(2) (stating that a motion presented to the Court functions as a certification by the presenting attorney that ‘the claims, defenses, and other legal contentions are warranted by existing law’) and 28 U.S.C § 1927 (providing for sanctions for unreasonably protracting litigation)
when filing a motion with the Court.”

Australian Gold’s complaint  seeks maximum damages allowed under 15 USC § 1117 for wrongful profits due to trademark infringement, plus attorneys fees and costs. It also seeks to bar Devoted Creations “from advertising and offering for sale or selling any products which have caused actual confusion or are likely to cause confusion” with Australian Gold’s trademark.

A jury trial is scheduled for Jan. 26, 2015.
 

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  1. As one of the many consumers affected by this breach, I found my bank data had been lifted and used to buy over $200 of various merchandise in New York. I did a pretty good job of tracing the purchases to stores around a college campus just from the info on my bank statement. Hm. Mr. Hill, I would like my $200 back! It doesn't belong to the state, in my opinion. Give it back to the consumers affected. I had to freeze my credit and take out data protection, order a new debit card and wait until it arrived. I deserve something for my trouble!

  2. Don't we have bigger issues to concern ourselves with?

  3. Anyone who takes the time to study disciplinary and bar admission cases in Indiana ... much of which is, as a matter of course and by intent, off the record, would have a very difficult time drawing lines that did not take into account things which are not supposed to matter, such as affiliations, associations, associates and the like. Justice Hoosier style is a far departure than what issues in most other parts of North America. (More like Central America, in fact.) See, e.g., http://www.theindianalawyer.com/indiana-attorney-illegally-practicing-in-florida-suspended-for-18-months/PARAMS/article/42200 When while the Indiana court system end the cruel practice of killing prophets of due process and those advocating for blind justice?

  4. Wouldn't this call for an investigation of Government corruption? Chief Justice Loretta Rush, wrote that the case warranted the high court’s review because the method the Indiana Court of Appeals used to reach its decision was “a significant departure from the law.” Specifically, David wrote that the appellate panel ruled after reweighing of the evidence, which is NOT permissible at the appellate level. **But yet, they look the other way while an innocent child was taken by a loving mother who did nothing wrong"

  5. Different rules for different folks....

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