NVE employee stated that the notice caused a ‘huge nightmare’ and the phones People that received the recall notice-who wanted to return ‘6 Hour POWER.’ One Number of calls “from convenience stores and truck stop retailers-the very But its witnesses testified that NVE and its distributors received a Out of over 100,000 retailers nationwide. NVE’s evidence that various unidentified retailers contacted them over the The district court excluded as inadmissible hearsay all of Implication recognizes this function of context. Reference to a piece of fruit, there’s no ambiguity. PROCESSING POWER THAN AN APPLE, without any indication that this was a joking Likewise, were a laptop to advertise MORE
Whether I ate a fruit or a computer, despite Apple’s fame. Thereof), you could not seriously believe that there is any question about Thus, it’s not enough to create ambiguity for a word to have multipleĪte an apple for lunch” to you (so you can’t hear capitalization or lack Omitted, was there any ambiguity in what the article meant in that particular sentence, because humans are context-making Of audience reaction in none of Justice Kagan’s examples, including the ones I’ve The context is provided by the nature of the question, not by further evidence Because “what does this article mean?” must be answered “itĭepends,” the notice couldn’t be literally false. This was “the wrong posture to take onĬaraco Pharm. Questions,’ evidence of confusion from ‘third party witnesses,’ and fortyĪlleged instances of consumer confusion. Weight to much of LE’s evidence, including “a survey that used ‘highly leading Plaintiff with a famous mark suing a direct competitor with a completelyĭissimilar mark: while a number, even a majority, of the factors would favor the plaintiff, mereĬounting wouldn’t reflect much about likely confusion. Perfectly fine to give heavier weight to certain factors, depending on the Judgment.” (Perhaps oddly, the court of appeals didn't discuss the effect of the suggestiveness finding but then, a borderline suggestive/descriptive mark can be considered relatively conceptually weak.) Comment: Other courts hold that it is The court of appeals deemed likely confusion a closeīalanced”-4 to 3 as the 6 th Circuit counts factors, with an additionalįactor not at issue-that “precedent counsels in favor of not granting summary to trade off of the success and reputation of He agreed that he believed that “the name 6 On having a shot that was better than a shot that lasted only five hours. One that we took seriously” and the one whose sales ‘were blowing up.” In name choice, he testified that he focused Why is the use of “power” any problem at all?) Palmeroni testified that he investigated the growing energy shot marketĪnd that his market research focused on LE’s product, as it was “really the only “energy” because it’s too close to a suggestive mark, then why isn’t “power” a Generic name of the category is “energy shot,” and they can’t use the term POWER” led them to use the term “POWER.” The court thought this earlier product was a Hours and because the rhyming scheme of an earlier product named “TOWER OF
Origin of the name from NVE President Robert Occhifinto and former NVE ViceĬlaimed that he chose the name because the caffeine’s effects last about 6 LE focused mostly on intent, since there were diverging accounts of the
#ENERGY SHOT 5 HOUR PLUS#
The court of appeals then turned to the confusionĭissimilarity of the marks plus descriptiveness pivotal in its conclusion,Īlong with NVE’s lack of intent to confuse. Properly only assessed in the goods/mark connection, not in inferring what That’s why marks are not classified in theĪbstract, without reference to the goods or services for which they are
“best” is suggestive rather than, as it is, highly descriptive. What the goods were from the simple term “best,” the court’s test implies that Without knowing the product, one would probably assume it’s generic for chicken That’s both an actual example and arbitrary, though in the abstract, Mark refers to socks, or batteries, or any other good (at least any other goodĪs to which the term wouldn’t be deceptive). “With some thought,” one could also arrive at the conclusion that the Understand that neither electric shocks nor nuclear radiation are generallyĭelivered, or desirable, via beverages. Rather by basic knowledge of human physiology shared by average consumers who Knowing the goods the “what kind of energy” is not answered by imagination but As applied to a beverage, the “how” question is answered by