• TRADE MARK

B&B Hardware, Inc vs. Hargi U.S. 8th Circuit Court of Appeals

The Respondent Hargis filed an application with the Patent and trade office to register its "Sealtite" mark but the PTO refused to grant the registration because of the likelihood of confusion with B&B's "Sealtight" mark. Hargis sought before the PTO's Trademark Trial and Appeal Board (TTAB) to cancel the registration of B&B's mark. The TTAB initially granted the cancellation request, but later reinstated B&B's registration and stayed the TTAB proceedings. After four-day trail the jury in the federal trademark action gave the verdict in favour of Hargis determining that B&B's "Sealtight" mark was merely descriptive and had not acquired a secondary meaning and there is no trademark infringement. Later, B&B filled a case against Hargis for alleged trademark infringement, unfair competition, trademark dilution, and false designation of origin in United States District Court for the Central District of California but over B&B objections the matter was transferred to the United States District Court for the Eastern District of Arkansas. Hargis sought an order of dismissal on grounds of res judicata and collateral estoppel based upon the 2000 jury verdict. Following a hearing, the district court granted Hargis motion to dismiss on the basis of collateral estoppel and said that B&B mark had become incontestable. It is not merely descriptive but also without any secondary meaning. The question that arises before the court was that whether there was a likelihood of confusion between the two marks and whether the mark was valid and protective and had a secondary meaning. To prove a trademark infringement claim, a plaintiff must show two things. First, they must establish ownership in a legally protectible mark, and second, they must show infringement by demonstrating a likelihood of confusion. To demonstrate that the mark is valid and should be protected, a Plaintiff must establish, in the case of a descriptive mark, that its mark has acquired a secondary meaning. A plaintiff does so by showing that through "long and exclusive use in the sale of the user's goods, the mark has become so associated in the public mind with such goods that good can be distinguished from those of others. On appeal, B&B contends that the district court should have given deference to the decisions of the TTAB that (1) B&B's "Sealtight" registration could not be attacked on grounds of descriptiveness because Hargis challenge was not timely made and (2) the prior district court decision did not address the issue of likelihood of confusion. Further with regard to collateral estoppel it was held that decision of district court which concluded that the 2000 jury verdict, wherein it was held that Hargis on B&B's prior trademark infringement claim was entitled to preclusive effect and the application of collateral estoppel which was held to be appropriate cannot be applied to current trademark infringement action because the jury in the prior litigation never determined the likelihood of confusion issue, a different and distinct issue from whether the mark was valid and protectible. Therefore, matter was dismissed and was send to the district court for further consideration.

• MEDIA AND PRIVACY

The author of a blog v. times newspapers limited high court of justice queen's bench division

An application in private whereby the Claimant, who is the author of a blog known as "Night Jack", sought an interim injunction to restrain Times Newspapers Ltd from publishing any information that would or might lead to his identification as the person responsible for that blog. An undertaking had been given on 28 May 2009 that such information would not be published pending the outcome. The Claimant is a serving detective constable and his blog mostly deals with his police work and his opinions on a number of social and political issues relating to the police and the administration of justice. in his blog he expressed strong opinions about these matters including on subjects of political controversy. In particular, he has criticised a number of ministers. In so far as he has written about cases of which he has obtained direct knowledge through his police duties, it is said that he has taken particular care to disguise the information. Moreover, he has tried to make it a practice not to comment on cases which were pending or "active" within the meaning of the Contempt of Court Act 1981. Nor has he flouted any court reporting restrictions. The Times unmasked the blogger which was objected to by the claimant on the ground that The Times is subject to an enforceable duty of confidence not to reveal the Claimant's identity as the author of the blog; alternatively, that he has a reasonable expectation of privacy as per Article 8 of the European Convention on Human Rights and Fundamental Freedomsin respect of that information, in respect of which there is no countervailing public interest justification for its publication. The court concluded that information does not have about it the necessary "quality of confidence"; nor does it qualify as information in respect of which the Claimant has a reasonable expectation of privacy - essentially because blogging is a public activity. Any such right of privacy on the Claimant's part would be likely to be outweighed at trial by a countervailing public interest in revealing that a particular police officer has been making these communications. Hence, temporary injunction as sought cannot be granted.