Summary
granting summary judgment for the defendant on the defense of fair use because neither failing to conduct a trademark search nor ignoring a cease and desist letter constitutes bad faith
Summary of this case from Oaklawn Jockey Club, Inc. v. Ky. Downs, LLCOpinion
No. 08-4479-cv.
July 29, 2009.
UPON DUE CONSIDERATION of the appeal from the United States District Court for the District of New York (Chin, J.) IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the District Court is AFFIRMED.
Bert P. Krages, Portland, OR (Tristan C. Loanzon, Loanzon Law Firm PC, New York, N.Y., on the brief), for Defendant-Third-Party-Plaintiff-Appellant.
Arlana S. Cohen (Eric J. Shimanoff, of counsel), Cowan, Liebowitz Latman, P.C., New York, N.Y., for Plaintiff-Appellee, Third-Party-Defendant-Appellee.
SUMMARY ORDER
Defendant-Appellant Mara Fox appeals from the judgment of the United States District Court for the District of New York (Chin, J.) granting Appellees Sephora, Inc. and Dessert Beauty, Inc.'s motion for summary judgment. Fox claimed before the District Court that Appellees' use of her registered trademark "Love Potion" violated her trademark. Appellees successfully argued in response that their use of the words "love potion" fell within section 33(b)(4) of the Lanham Act's fair use defense to a claim of trademark infringement. On appeal, Fox argues that the District Court erred in its application of each of the three elements of the Lanham Act's fair use defense. We assume the parties' familiarity with the facts of the case, its procedural history, and the scope of the issues on appeal.
For substantially the same reasons as the District Court, we find that Appellees have satisfied the Lanham Act's fair use defense. Accordingly, we AFFIRM the District Court's judgment.