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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. Someone off their meds? C'mon John, it is called the politics of Empire. Get with the program, will ya? How can we build one world under secularist ideals without breaking a few eggs? Of course, once it is fully built, is the American public who will feel the deadly grip of the velvet glove. One cannot lay down with dogs without getting fleas. The cup of wrath is nearly full, John Smith, nearly full. Oops, there I go, almost sounding as alarmist as Smith. Guess he and I both need to listen to this again: https://www.youtube.com/watch?v=CRnQ65J02XA

  2. Charles Rice was one of the greatest of the so-called great generation in America. I was privileged to count him among my mentors. He stood firm for Christ and Christ's Church in the Spirit of Thomas More, always quick to be a good servant of the King, but always God's first. I had Rice come speak to 700 in Fort Wayne as Obama took office. Rice was concerned that this rise of aggressive secularism and militant Islam were dual threats to Christendom,er, please forgive, I meant to say "Western Civilization". RIP Charlie. You are safe at home.

  3. It's a big fat black mark against the US that they radicalized a lot of these Afghan jihadis in the 80s to fight the soviets and then when they predictably got around to biting the hand that fed them, the US had to invade their homelands, install a bunch of corrupt drug kingpins and kleptocrats, take these guys and torture the hell out of them. Why for example did the US have to sodomize them? Dubya said "they hate us for our freedoms!" Here, try some of that freedom whether you like it or not!!! Now they got even more reasons to hate us-- lets just keep bombing the crap out of their populations, installing more puppet regimes, arming one faction against another, etc etc etc.... the US is becoming a monster. No wonder they hate us. Here's my modest recommendation. How about we follow "Just War" theory in the future. St Augustine had it right. How about we treat these obvious prisoners of war according to the Geneva convention instead of torturing them in sadistic and perverted ways.

  4. As usual, John is "spot-on." The subtle but poignant points he makes are numerous and warrant reflection by mediators and users. Oh but were it so simple.

  5. ACLU. Way to step up against the police state. I see a lot of things from the ACLU I don't like but this one is a gold star in its column.... instead of fighting it the authorities should apologize and back off.

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