Monday, February 27, 2017

Supreme Court Denies Belmora's Petition for Certioriari in the FLANAX Case

The Supreme Court has denied the petition for writ of certiorari filed by Belmora LLC, seeking review of the Fourth Circuit's decision in Belmora LLC v. Bayer Consumer Care AG and Bayer Healthcare LLC,  819 F.3d 697 (4th Cir. 2016). 

Belmora's FLANAX

Based on its reading of the Supreme Court’s Lexmark decision, the U.S. District Court for the Eastern District of Virginia 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, ruling that the Lanham Act does not allow an owner of a foreign mark not registered in the United States, who does not use the mark in the United States [Bayer], to assert priority rights over a mark that is registered and used by another party [Belmora] in this country.

The Fourth Circuit concluded that the district court misapplied Lexmark, observing that there is no requirement in the language of Section 43(a) or Section 14(3) that a plaintiff must have used its own mark in commerce in order to prevail.

In its petition, Belmora had stated the "Question Presented" 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 2017.


At 8:22 PM, Anonymous Paul Reidl said...

I think this is the right decision (although I know that a lot of folks might disagree). I also disagree with the 9th Circuit's decision to the contrary in the Mexican supermarket case, but what do I know? If the mark is not in use in the USA there are no rights by statute or common law, IMHO. And without rights there is no cause of action.


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