Orange County Trademark Attorney - Orange County Trademark Lawyer

Orange County - Last December, Gibson Guitars, Inc. sued Viacom Inc. and John Hornby Skewes & Co. Ltd. for trademark infringement related to the Gibson "Flying V" guitar model. John Hornby Skewes & Co. is a worldwide distributor of music merchandise since 1965 and is based in the United Kingdom.

The dispute began when John Hornby Skewes approached Viacom for a license to use the SpongeBob SquarePants trademark for a new novelty line of guitars, ukuleles, and related accessories. The licensing agreement was drawn up and signed allowing John Hornby Skewes to use the SpongeBob trademark and logo on musical instruments.

Thereafter John Hornby Skewes began selling a ukulele that looked similar to Gibson's famous "Flying V" guitar model, initially released in 1958. Gibson currently owns the FLYING V trademark, Reg. No. 1,216,644 for guitars.

When Gibson sued Viacom and John Hornby Skewes for trademark infringement, Viacom countered the lawsuit by filing a motion to dismiss itself from the lawsuit stating that it had no say whatsoever in decisions made by John Hornby Skewes pertaining to the designs or shapes of the instruments.

Last week U.S. District Court Judge Dean D. Pregerson made it clear that he tends to agree. Although Judge Pregerson is leaning toward dismissing Viacom from the case, he has not yet rendered his final decision but has made statements to indicate he is "inclined" to grant the motion.

Gibson's attorney tried to sway the judge by pointing out that the licensing agreement gives Viacom the right to approval of all released products under the license. However, Judge Pregerson does not believe that Viacom should be responsible in the way that Gibson is requesting. In this instance, Judge Pregerson called Viacom a "passive licensor" who played no part in the instrument body designed by John Hornby Skewes.

Gibson believes, at least according to its original complaint, that Viacom and John Hornby Skewes intentionally tried to mislead the public into thinking that the SpongeBob ukuleles were made by Gibson. Gibson alleges that both Defendants "made significant profits from it."

The Complaint also requests that Viacom be ordered to hand over all infringing merchandise and pay over $1 million in statutory damages. According to Viacom's trademark attorneys, the only "Spongebob" ukeleles sold in the United States were the ones purchased by Gibson's counsel.

Orange County - In the aftermath of the April 15, 2013 Boston Marathon attack, no less than 8 separate trademark applications containing the words "Boston Strong" have been filed with the U.S. Patent & Trademark Office. The phrase became a popular credo for Bostonians who gathered to show support for one another during a difficult time.

Two of these applications, Serial No. 85,906,569 filed by Born Into It, Inc. for "clothing and accessories" and Serial No. 85,906,495 filed by an Allston, Massachusetts individual for "Imprinting messages on wearing apparel, accessories and mugs" were filed as quickly as two days after the tragedy. The Allston Massachusetts individual has already expressly abandoned that application. Then, on April 20, 2013, three additional applications were filed by individuals in Oxford, Connecticut, New Port Richey, Florida and Brockton, Massachusetts all for apparel items. On April 22, 2013 two more applications were filed and there could be more because it takes about a week for the applications to show up online.

The bad news for those filing a BOSTON STRONG application after April 18th is that the Born Into It Application filed on April 17th will stand in the way of registration. So, that will likely knock out all but one Application filed for BOSTON STRONG COFFEE.

Another problem the applicants face is that the BOSTON STRONG phrase has recently come into widespread usage, so it will likely be very difficult to enforce trademark rights even if the trademark registered. Beyond these issues, most of the applications were filed on an intent to use basis and the applicants likely do not realize that merely printing words on a t-shirt or hat is not considered trademark use by the U.S. Patent and Trademark Office. Instead, a trademark must act as a source identifier, so to be accepted as a specimen of use the trademark must be used on a label or hang tag.

A final issue is that most people will view the rush to register the trademark as in bad taste. The public view of any efforts to enforce rights to the BOSTON STRONG trademark by way of a cease and desist letter or by litigation would likely be viewed in an even dimmer light.

While it is not uncommon for individuals to rush out to file trademark applications involving the newest fad or latest news, as most if not all of these applicants will soon realize it is rarely a good idea.

Orange County - Bausch & Lomb Inc., well-known optical innovators since the early 1900's, recently filed a counterclaim seeking cancellation of a trademark in a lawsuit in which Bausch & Lomb was sued for trademark infringement. The trademark at issue is "See better Live Better".

The Plaintiff in the lawsuit is Stuart J. Kaufman, M.D., a Florida Ophthalmologist who owns SEE BETTER LIVE BETTER U.S. Trademark Registration No. 3,917,064 for physician services in the field of ophthalmology. Mr. Kaufman is seeking injunctive relief as well as damages from Bausch & Lomb's use of the phrase "See better. Live better" in advertising and on its web site.

The original complaint against Bausch & Lomb was filed in February. In response to being sued, Bausch & Lomb decided to file the counterclaim against Dr. Kaufman asserting that SEE BETTER LIVE BETTER is a generic term in the industry of eye care and therefore the trademark should be cancelled by the U.S. Patent & Trademark Office. In the counterclaim, Bausch & Lomb states that many others in the eye care industry are using the slogan or similar slogans and therefore "No one party should have exclusive rights to this popular phrase." In its counterclaim Bausch & Lomb states that "See Better Live Better is generic for eye services that help people see better so that they can live better."

While it may be a stretch to say that the trademark is inherently generic, Bauch & Lomb can still be successful in cancelling the trademark if it can prove that it is in widespread use. Examples of trademarks that became generic over time are ASPIRIN and CELLOPHANE. To support its claim that the trademark has become generic, the counterclaim lists many other uses of the trademark including uses by ophthalmologists that allegedly used the slogan prior to Mr. Kaufman. This is somewhat of a position pill argument in that Bausch & Lomb is arguing that it also is not entitled to trademark protection in the slogan. Considering this, it may be advisable for Bausch & Lomb to cease use of the phrase regardless of the merits of the claim.

Dr. Kaufman is accusing Bausch & Lomb of "reverse confusion." In other words, he is alleging that the public will believe that Bausch & Lomb is the true owner of the trademark which will lead the public to believe that Mr. Kaufman is the infringer rather than Bausch & Lomb.

Orange County - Unilever NV and International IP Holdings, LLC are in a trademark war, debating whether International IP Holdings' SLIMFUL trademark used in relation to diet foods infringes Unilever's SLIM-FAST trademark.

On March 18th, International IP Holdings filed a lawsuit against Unilever subsidiary Conopco, Inc. in Michigan federal court seeking a declaratory judgment that Conopco has no grounds to preclude it from using the SLIMFUL trademark.

"Conopco does not own a trademark registration for the term 'Slimful,' it has never used the term as a trademark to identify the source of any product, and the term 'Slimful' does not appear anywhere on Conopco's products," Internationbal IP Holdings' complaint said.

International IP Holdings claimed that Conopco gave it notice in mid-February that the Slimful product packaging infringed the Conopco's Slim-Fast meal replacement trademarks and trade dress. International IP Holdings argued that its packaging did not infringe Conopco's trade dress, as it had used significantly more yellow than red to distinguish its product from Slim-Fast. International IP Holdings also claimed that its packaging has other features, such as the typeface and artwork, that are significantly different from what is used on the Slim-Fast bars.

The day after International IP Holdings filed its complaint for declaratory relief, Unilever fired back by filing a lawsuit in New York federal court, claiming that the Slimful products infringe its trademarks and trade dress.

Unilever said in its complaint that Slimful's packaging uses "simulations, confusingly similar variations, or colorable imitations" of the Slim-Fast packaging and that the company has blatantly copied the Slim-Fast trade dress.

Unilever also claims that International IP Holdings filed an application for SLIMFUL even though it had knowledge of the SLIM-FAST trademark and the fact that it has been in use since 1977 on billions of dollars worth of meal replacements and other diet products. Unilever also alleged that International IP Holdings has made false and misleading claims about its own products.

International IP Holdings responded to Unilever's lawsuit on Thursday with a motion to dismiss, claiming that it had filed its claim in Michigan first and that the case was not linked to New York and therefore the New York federal court does not have jurisdiction over the matter.

Orange County - Drug producer Pohl-Boskamp GmbH & Co. KG cannot trademark the peppermint scent and flavor of a nitroglycerin spray sold to help treat chest pain, according to a recent decision by the U.S. Trademark Trial and Appeal Board.

The TTAB ruled that the taste and smell of peppermint in the Nitrolingual Pumpspray is functional because the peppermint oil makes the spray more effective at treating chest pain due to angina and therefore it cannot be registered as a trademark. The board also ruled that the flavor and smell were not distinct enough to warrant trademark protection.

Pohl-Boskamp filed a trademark application for the peppermint scent and flavor of the Nitrolingual Pumpspray in 2010. The liquid is sprayed under the tongue and is used to help provide relief from an attack of angina pectoris, a form of chest pain brought on when the heart does not get the blood and oxygen it needs because of coronary heart disease.

The board pointed out that the Trademark Act does not bar scents and flavors from being trademarked, as the law describes a trademark as a "word, symbol or device" used to distinguish goods or services. However, the board said that Pohl-Boskamp did not prove that the scent and flavor of the Nitrolingual Pumpspray is deserving of a trademark.

The Trademark Trial and Appeal Board pointed to a patent owned by another company that indicates peppermint oil reduces side effects of nitroglycerin by increasing the rate at which it is absorbed into the bloodstream. This makes the peppermint functional and therefore not protectable by trademark. In other words, allowing the trademark to register would give Pohl-Boskamp a competitive advantage. "Competitors would either have to forgo using peppermint oil or find a way to mask the taste of the peppermint oil, if that were even possible," the board ruled.

The board also pointed out that Pohl-Boskamp's argument that the peppermint smell was "substantially exclusive" to its product was groundless, as the board found competing products with the same scent. The board ruled that since there are several competing products with a similar scent and flavor, consumers would perceive those characteristics as physical attributes of the product, not as indicators of the origin of the product.

"To allow applicant the exclusive right to market nitroglycerine formulations having the flavor of peppermint oil would impermissibly prevent the future use of therapeutic peppermint oil by others in applicant's field," the board concluded.

Orange County - Tiffany & Co. filed a trademark infringement lawsuit against Costco Wholesale Corp. claiming that the discount retail giant sold unauthorized diamond engagement rings with the Tiffany brand name.

The high-end jewelry maker claimed that it discovered Costco was using the Tiffany name to market and sell diamond engagement rings at its various retail locations across the United States through an internal investigation.

"Costco was able to sell... engagement rings falsely identified as 'Tiffany,' and thereby unlawfully trade on Tiffany's goodwill and brand awareness to increase its own sales," the complaint said.

Tiffany claimed that Costco's use of the Tiffany brand name harmed the high-end jewelry retailer by associating its high-end name with a budget retail chain. Tiffany also claimed that Costco purposely attempted to evade detection of its infringement by only selling and marketing the unauthorized Tiffany-branded engagement rings in stores and not promoting the rings online.

"The only place the Tiffany trademarks were displayed were on point of sale signs within a glass case in the jewelry departments of Costco warehouse stores, making them visible only to Costco members shopping for engagement rings in particular stores where the rings were displayed," Tiffany said.

Tiffany claims that Costco's use of its trademark in conjunction with the engagement rings it sold mislead customers to believe they were buying genuine Tiffany rings and caused them to see Costco as a retailer of fine jewelry products.

"Since these rings themselves were not Tiffany, the counterfeits made other non-branded jewelry in the same display case appear more valuable by comparison since those other items were, in fact, no different than what was falsely labeled as Tiffany," Tiffany said.

Tiffany addressed the alleged infringement with Costco in December and Costco agreed to cease using the Tiffany name in all of its store locations. However, Tiffany is still seeking Costco's profits from selling the alleged counterfeit goods, treble damages, and an order requiring Costco to make a public statement regarding its misconduct and to notify all purchasers of the rings that they had not bought authentic Tiffany jewelry.
Tiffany is accusing Costco of trademark infringement, counterfeiting, dilution, and false advertising.

Orange County - DC Comics Inc. filed a lawsuit in Orange County against a custom carmaker claiming that the automaker is infringing its trademarks and copyrights by building and selling replicas of the Batmobile.

Mark Towle, who owns Gotham Garage in Orange County, asked U.S. District Judge Ronald S.W. Lew of the Central District of California to grant his motion for summary judgment claiming that DC Comics knew he had been building the Batmobile for at least ten years and said the company had waited too long to assert its rights.

The carmaker claimed that he was contacted in 2003 by counsel for Warner Bros. Entertainment Inc., the parent company of DC Comics, regarding a photograph the company had come across depicting the Batmobile in various stages of production at Towle's place of business in Santa Ana, the most populous city in Orange County.

Towle argued that although they knew his business made Batmobiles much earlier, DC Comics did not sue him for copyright and trademark infringement until May 2011. Because of this, Towle claims that DC Comics waited too long to file the lawsuit. He also argued that counsel for Warner Bros. never mentioned to him he was infringing on its copyrights or trademarks and never told him to stop his replica building activities.

According to Towle, the testimony of DC Comics' deputy counsel for intellectual property demonstrated that the company had not been enforcing its intellectual property rights with Batmobile reproducers in any way from 1995 to 2010, effectively waiving its right to sue for infringement by failing policing its trademarks and copyrights.

Towle also argued that DC Comic's trademark BATMOBILE only registered in November of last year for use on automobiles. Before that date, DC Comics was not in the automobile market and therefore it could not have suffered any damages from his Batmobile sales.

The comic book publisher argued that Judge Lew should grant its competing motion for summary judgment, arguing there is no evidence DC Comics knew about Towle's infringement in 2003 and claiming he should have to reimburse the company for the profits he earned by using the company's trademarks and copyrights without authorization.

Gotham Garage's business relies on building replicas of the most iconic cars from the movies, the Batmobile being crucial to the business. The cars sell for as much as $90,000 and customers wait more than a year for a custom car.

Orange County - Three units of H&R Block Inc. filed a lawsuit against TurboTax maker Intuit Inc. claiming that the company launched an advertising campaign that infringes H&R Block's trademark and misleads consumers as to the legitimacy of H&R Block's services.

H&R Block Eastern Services Inc., HRB Innovations Inc. and H&R Clock Enterprises LLC oppose the newest marketing campaign Intuit launched in order to promote the do-it-yourself tax return software for the upcoming tax season. H&R Block accused Intuit of airing advertisements that make unauthorized use the H&R Block trademark and falsely represent H&R Block's competence to file tax returns.

H&R Block claims it has spent over half a century building its trademark, which is strong, distinctive and famous. The complaint alleges that Intuit is using its trademark in order to degrade the company and enhance its own profits.

The complaint alleges its trademark is being used in the advertisements to compare services and to suggest that H&R Block recruits and employs tax preparers with no experience, who are not adequately trained or credentialed and are simply seasonal employees while TurboTax offers "real tax experts" to handle customer questions.

H&R Block also alleges that Intuit's advertising campaign attacks the reputation of H&R Block by suggesting that more people use, and therefore trust, TurboTax than H&R Block's traditional in-store services.

The complaint goes on to say that Intuit's "claims are unsupported and its actions are not innocent." It alleges that the campaign was timed to launch at the beginning of the tax season in order to maximize Intuit's benefit and to inflict the maximum amount of harm on H&R Block.

The complaint seeks immediate injunctive relief, claiming that if Intuit is allowed to continue its advertising campaign it will do irreparable harm to H&R Block. "Every day that the Campaign continues to run, Plaintiffs suffer great harm in that Defendant's misinformation may lure an untold number of consumers to Defendant's product, dissuade consumers from seeking Plaintiffs' services, or both," the complaint said.

H&R Block claims monetary remedies are not sufficient, as each current customer of H&R Block that is duped by the advertising campaign is likely to be a customer lost for life, as tax preparers tend to use the same method every year. Though, the complaint does ask for Intuit's profits that were obtained by its deceptive ads and for other damages.

Orange County - The Kardashian sisters and the cosmetics company Boldface Licensing + Branding were hit with a $10 million trademark infringement counterclaim in California federal court by a Florida-based makeup artist on Wednesday.

Makeup artist Lee Tillett owns the KROMA trademark, a name she uses on her line of cosmetics. In her counterclaim, Tillett alleges Boldface's use of the brand name Khroma, which is endorsed by Kim, Kourtney and Khloe Kardashian, constitutes trademark infringement, false designation of origin, and unfair competition.

The dispute started when Tillett sent a cease and desist letter to Boldface in June 2012 when she learned of the company's intention to use the name. The parties communicated back and forth but were unable to reach an agreement.

Tillett's counterclaim came as a response to the November 2012 lawsuit Boldface filed requesting a declaratory judgment that Boldface be able to use Khroma as the brand for its cosmetics line, despite Tillett's trademark.

In a recent trademark registration for KROMA, Tillett claims she has been using the Kroma name since 2004. Because of the similarity between the two names, the United States Patent and Trademark Office rejected Boldface's applications for the KHROMA trademark on grounds that it would likely cause confusion between the two brands.

Boldface was founded by Nicole Ostoya in Nevada, with the intent of licensing entertainment and designer brands to launch cosmetic lines. "Khroma Beauty by Kourtney, Kim and Khloé" is the first line of cosmetics the company has launched and Tillett claims that Boldface would quickly run out of money without the Kardashian's line.

In the counterclaim, Tillett alleges that the high profile of the Kardashian sisters and the hype around the Khroma brand has caused a significant amount of confusion between the two cosmetic lines. She claims this has caused people to assume her Kroma products are associated with the Kardashian sisters and has diluted and damaged her brand.

Tillett also claims that she was in talks with a representative of Kim Kardashian about a product placement deal for her Kroma cosmetics on the reality television show "The SPINdustry," which Kim Kardashian produces. They were unable to make a deal and Tillett claims Kim came up with the Khroma name after their negotiations ended.
In her prayer for relief, Tillett requested that the court dismiss the case brought by Boldface, issue an injunction prohibiting Boldface from using the name Khroma, require corrective advertising, disgorgement of profits, relief for lost profits, legal costs and treble damages for trademark infringement.

The California-based cosmetics company Chroma Makeup Studio LLC is also suing Boldface for trademark infringement in a separate lawsuit in the same court.

Orange County - Bob Marley's relatives have settled a family feud that began when Marley's half brother exploited the late singer's legacy for financial gain.

Fifty-Six Hope Road Music Ltd., which represents Bob Marley's widow and nine of his children, filed a lawsuit against his half brother Richard Booker in December 2011. The lawsuit followed a cease and desist letter Fifty-Six Hope Road sent to Richard Booker in March 2009, which Booker failed to respond to or comply with.

In the complaint, Hope Road claimed that Booker had used Bob Marley's trademarks, along with his name and likeness, to promote business ventures thereby capitalizing on Marley's legacy even though he does not own right's to Marley's name, likeness, persona or identity.

Hope Road claimed in the complaint that the "defendants' use continues unabated and, in fact, has increased in scope." It also alleged false designation of origin, trademark infringement and dilution, and copyright infringement.

Hope Road claimed that Booker's trademarked 9 Mile Music Festival was named for the Nine Mile Village in Jamaica where Bob Marley was born and buried. It claimed that Booker had used Marley's name in conjunction with the festival, including using the headline "All For the Love of Bob Marley" in a press release promoting the event. Hope Road also claimed that Booker used copyrighted images of Bob Marley on his website to promote the event.

In addition to its claims about the festival, Hope Road claimed that Booker had used Marley's name and likeness to promote business ventures relating to food items, liquor, and tour packages.

Booker attempted to register the trademark "Mama Marley" to use in conjunction with a Jamaican food restaurant, which Hope Road filed an opposition to in August 2008.
Hope Road acknowledged that Booker did have a licensing agreement at one time to use Bob Marley's trademarks, but claimed that Booker reneged on the agreement.
Despite their differences, the parties were able to settle the case, though they are keeping details of the settlement confidential.

According to the joint stipulation filed Friday, the parties "hereby stipulate to and agree that between them they have reached a settlement resolving all claims at issue in this case and that all claims for relief alleged herein ... shall be dismissed with prejudice."

Orange County - Texas A&M and the Manziel family are working to trademark quarterback Johnny Manziel's nickname "Johnny Football," but someone else has already claimed it.

The freshman quarterback has the 9th ranked Aggies at 9-2, thanks to the 21 touchdowns he has thrown and the 17 he has rushed for this season. His popularity hit an all-time high recently when he led the Aggies to a 29-24 victory over the then No. 1 ranked Alabama two weeks ago.

Texas A&M is not interested in obtaining the trademark to make money, but rather to prevent anyone else from using it. In order to protect Manziel's eligibility as an armature player, the NCAA forbids Texas A&M and the family from profiting from any merchandise that can be linked to Manziel. The NCAA also expects the university to prevent other vendors from profiting from merchandise associated with amateur players.

Preventing vendors from profiting from the trademark could prove difficult. Texas A&M discovered that Kenneth R. Reynolds Family Investments, located in College Station, Texas, applied for the "Johnny Football" trademark to use on athletic wear, footballs, and video games on the first of this month. The attorney of record did not return calls seeking comment on the application, but it appears he is not working with the university or the Manziel family.

Even if Texas A&M and the Manziel family are able to get the trademark from Kenneth R. Reynolds Family Investments, they will not be able to use the trademark in commerce for more than three years while Manziel is still playing college football, meaning it will be expensive to protect the trademark without being able to profit from it.

Though they are forbidden from selling merchandise with "Johnny Football," Texas A&M has found another way to capitalize on Manziel's popularity. They have begun selling "No. 2" jerseys in addition to the "No.1" and "No.12" jerseys they normally sell that are not associated with any specific players. And as the season progresses, the school is having a hard time keeping the "No.2" jerseys on the shelves.

Orange County - This week, a federal Judge in the Central District of California in Orange County ruled in favor of Hero Nutritionals to keep its trademark infringement claim alive against vitamin rival Nutraceutical Corporation.

In the lawsuit, Hero Nutritionals claims that Nutraceutical Corp. is engaging in unfair competition and trademark infringement by using the word "yummy" for its nutritional supplements marketed to children. Hero Nutritionals currently owns the trademark rights to "Yummi Bears" for vitamins.

In a hearing held Monday in Orange County, U.S. District Judge Andrew J. Guilford, reviewed Nutraceutical's motion for summary judgment and denied it stating that it was his belief that the claims asserted by Hero Nutritionals would be better decided by a jury. He further ruled that although it was far from certain that consumers would likely be confused by the names of the two products, there were "genuine issues of fact" related to Hero's allegations that should be settled at trial.

The trial is scheduled for December of this year and both sides had submitted opposing filings just a day prior to Judge Guilford's most recent ruling. In its recent filings, Hero alleges that Nutraceutical's nutritional supplements for children violate its trademark rights on "Yummi Bear" products. In contrast, Nutraceutical asserts that it is "highly unlikely" that consumers would be confused between the products its makes and those of Hero. Nutraceutical argues that the sales history of the products themselves demonstrates that confusion is highly unlikely as to the actual source of these products. Nutraceutical further added that it has been using the term "yummy" on chewable children's supplements for 14 years. In that time, there has not been a single instance of actual confusion and Hero has made no argument against the use until now.

Hero asserts that Nutraceutical is selling infringing products such as "Yummy Greens" and "Yummy Gummy" which it alleges are clear violations of its trademark rights. A representative for Hero stated that "[Nutraceutical's] use of the name 'Yummy Greens' to market bear-shaped gummy vitamins wrongfully infringes on Hero's Yummi trademarks [and] free-rides on the substantial efforts and expenditures Hero invested to establish its reputation and goodwill through public recognition of the 'Yummi' brand." Hero also believes that there is a strong likelihood that if its case is allowed to go to trial, a jury will find in its favor on its trademark infringement and unfair competition claims.

The lawsuit between Hero and Nutraceutical Corp was initially filed in August 2011. The court documents allege trademark infringement under the federal Lanham Act, as well as unfair competition under federal and state laws. A motion for summary judgment asserting arguments similar to those presented in Monday's memorandum was filed by Nutraceutical in September of this year. However, after reviewing the relevant documents, Judge Guilford denied that motion in a minute order released Tuesday.

Orange County - A California state appeals court on Wednesday declined to revive the popular San Jose tourist attraction the Winchester Mystery House's attempts to keep a film company from using its trademarks in a movie loosely based on the builder of the house.

The 160 room Mystery House was under construction for 38 years starting in 1884, in a quixotic undertaking by Sarah Winchester, the widow of gun manufacturer William Winchester, which only ended with her death in 1922. According to legend, Winchester believed that if she halted construction on the house, she would be haunted by the ghosts of those slain by her husband's weapons.

After Global Asylum Inc. released the film "Haunting of Winchester House," Winchester Mystery House LLC sued the company alleging unauthorized use of its trademarks, among other claims. The trial court granted summary judgment to Global Asylum, and the Mystery House appealed, saying the court failed to look at whether its trademarks have become an integral part of the public's vocabulary.

The trial court properly granted the motion for summary judgment, the California Sixth Appellate District ruled, saying Global Asylum has a First Amendment right to the use of the name.

In 2008 the Mystery House entered an agreement with Imagination Design Works Inc. to use the mansion as a location for the filming and production of a movie, granting IDW exclusive rights to the use of the property and certain trademarks and copyrights relating to its history.

In 2009 the Mystery House received an email from a Global Asylum production coordinator asking about filming location rates for the property. The Mystery House replied that it had granted the exclusive rights to the Winchester story to another company.

The Mystery House learned later that year about Global Asylum's film, and sent it a series of letters informing it of the possible trademark infringement to no avail.

The DVD for "Haunting of Winchester House" features a depiction of a Victorian style structure, and the back cover describes a story in which a family moves into a 160 room mansion only to have a malevolent force abduct their daughter. The cover art, though, does not depict the actual mansion, nor does it feature the phrase Winchester Mystery House anywhere, the appeals court noted.

Orange County - Clothing retail giant Nordstrom Inc. filed a new trademark infringement complaint against a web retailer in Seattle federal court on Friday over alleged cybersquatting and unauthorized use of Nordstrom's "Rack" trademark for discount clothing sales.

NoMoreRack Retail Group Inc. and NoMoreRack.com Inc. have willfully misappropriated, diluted and damaged Nordstrom's federally registered trademarks for the terms "Rack," "The Rack" and "Nordstrom Rack," Nordstrom's complaint says.

Nordstrom, one of the nation's leading fashion apparel retailers, launched a new store 40 years ago known as Nordstrom Rack, which the company claims has become "one of the most successful concepts in retailing today." Rack offers clothing, accessories and other consumer goods at deeply discounted prices, and has become a $2 billion per year enterprise, according to Nordstrom.

NoMoreRack, meanwhile, has sought to wrongly profit from Nordstrom's substantial investment in the trademarks by using the business name "No More Rack" and operating the domain names NoMoreRack.com and FriendRack.com, Nordstrom says.

The NoMoreRack website offers products that directly compete with those offered by Nordstrom under its Rack trademarks, the complaint says. FriendRack points to a page on the NoMoreRack site offering rewards to customers who refer friends to NoMoreRack.

"NoMoreRack seeks simultaneously to trade off of the goodwill the Rack marks have come to enjoy among customers, and to reduce the value of that goodwill by improperly associating Nordstrom and the Rack marks with goods and services from unrelated sources," Nordstrom says.

"As a result, the Rack marks' hard-won reputation for high quality merchandise and outstanding customer service is being diluted, the value of Nordstrom's trademarks is being diminished, and customers are being misled and confused," it says.

The NoMoreRack site represents a new type of off-price retail concept, known as a "flash sale" website, according to Nordstrom. Flash sale sites generally offer a particular set of goods at deep discounts, but only for short periods of time.

Nordstrom promptly put NoMoreRack on notice that its name infringes the Rack trademarks as soon as it learned of NoMoreRack's site earlier this year, but NoMoreRack continues to refuse to comply with Nordstrom's demands that it stop using the trademark or any variation, the complaint says.

Orange County - Rare Hospitality International Inc., which owns the Longhorn Steakhouse chain of restaurants, is facing new trademark claims from Las Vegas's Golden Nugget casino, which alleges one of the chain's cheesecake desserts infringes its trademarked name.

GNLV Corp. filed a complaint in Nevada federal court Tuesday alleging the Longhorn Golden Nugget Fried Cheesecake is a bad faith ripoff of GNLV's trademarks for restaurant services.

GNLV holds federally registered trademarks for the name Golden Nugget in conjunction with casino and restaurant services, and has continuously used the name since the casino opened in 1946.

"The Golden Nugget name and mark is among the most recognized and respected names in the gaming industry," the complaint says.

The company and its predecessors have spent tens of millions of dollars over the years on ads and promotions using the trademarks around the world. It has made extensive use of the trademarks in connection with restaurant, hotel and casino services.

In July GNLV learned that Longhorn was using the Golden Nugget trademark in connection with the fried cheesecake dessert at all of its 386 steakhouses.

"The defendant is using the Golden Nugget mark with the bad faith intent to profit from plaintiff's marks," the complaint says.

Longhorn has no trademark or other intellectual property rights in the Golden Nugget name, and has never used it before in connection with any of its goods or services, according to GNLV.

"The defendant intends to obtain a commercial benefit by offering restaurant goods and services under the Golden Nugget Mark and in a manner that could harm the goodwill represented by plaintiff's marks," the company says.

Longhorn is using the trademark in commerce for its restaurant goods and services, which makes it confusingly similar to GNLV's own services and possibly deceptive to consumers, GNLV says.

GNLV is also asserting claims for unfair competition, deceptive trade practices and intentional interference with prospective economic advantage. The company is seeking an injunction barring Longhorn from using the trademark name, damages, costs and attorneys' fees.