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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. Such things are no more elections than those in the late, unlamented Soviet Union.

  2. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  3. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  4. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  5. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

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