ILNews

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

Back to TopCommentsE-mailPrintBookmark and Share

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.
 

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Hail to our Constitutional Law Expert in the Executive Office! “What you’re not paying attention to is the fact that I just took an action to change the law,” Obama said.

  2. What is this, the Ind Supreme Court thinking that there is a separation of powers and limited enumerated powers as delegated by a dusty old document? Such eighteen century thinking, so rare and unwanted by the elites in this modern age. Dictate to us, dictate over us, the massess are chanting! George Soros agrees. Time to change with times Ind Supreme Court, says all President Snows. Rule by executive decree is the new black.

  3. I made the same argument before a commission of the Indiana Supreme Court and then to the fedeal district and federal appellate courts. Fell flat. So very glad to read that some judges still beleive that evidentiary foundations matter.

  4. KUDOS to the Indiana Supreme Court for realizing that some bureacracies need to go to the stake. Recall what RWR said: "No government ever voluntarily reduces itself in size. Government programs, once launched, never disappear. Actually, a government bureau is the nearest thing to eternal life we'll ever see on this earth!" NOW ... what next to this rare and inspiring chopping block? Well, the Commission on Gender and Race (but not religion!?!) is way overdue. And some other Board's could be cut with a positive for State and the reputation of the Indiana judiciary.

  5. During a visit where an informant with police wears audio and video, does the video necessary have to show hand to hand transaction of money and narcotics?

ADVERTISEMENT