Friday, October 21, 2016

Belmora Files Petition for Writ of Certiorari in FLANAX Case

In the latest chapter in the long-running battle between Belmora LLC and Bayer over the mark FLANAX, Belmora has filed a petition for writ of certiorari from the Supreme Court. [Petition here]. Belmora seeks review of the ruling of the U.S. Court of Appeals for the Fourth Circuit in March 2016, which vacated an order of the U.S. District Court for the Eastern District of Virginia that had dismissed Bayer's claims because Bayer had never used the mark FLANAX in the United States.

Belmora owns a U.S. registration for the mark FLANAX for a naproxen sodium pain reliever, and has used the mark in this country for more than a decade. Bayer petitioned to cancel the registration, and when Belmora sought review of that decision by way of civil action, Bayer added claims for unfair competition.

The lower court dismissed Bayer's Section 43(a) false association and false advertising claims under FRCP 12(b)(6) and entered judgment on the pleadings as to Bayer's Section 14(3) claim, based on the district court's reading of the Supreme Court's Lexmark decision. [TTABlogged here].

In the petition, the "Question Presented" is stated as follows:

Whether Sections 14(3) and 43(a) of the Lanham Act allow a foreign business that has neither used nor registered its trademark in the United States to sue the owner of a U.S. trademark for conduct relating to the owner’s use of its U.S. mark.

Read comments and post your comment here.

Text Copyright John L. Welch 2016.


At 9:50 AM, Anonymous Joe Dreitler said...

If the answer is you can enforce trademark rights in the USA when you have none, expect other countries will repay us the favor. I understand the reason the plaintiff brought the lawsuit, but most multi nationals do not own trademarks and sell products under their trademark in every country of the world for a myriad of business reasons.
The US has subscribed to the basic principle of trademark law that trademarks are territorial. If they are not, who decides company X owns global rights? In a former life I lived with the fact that SURE for antiperspirant was owned in the U.K. byUnilever, while P&G owned rights in the US and sold an identical product.
Another poor 4th Circuit decision along the lines of Shakespeare and LL Wings that is poorly thought out.


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