Friday, December 05, 2008

Another pro se litigant smoked at the CAFC

In Hainline v. Vanity Fair, the CAFC went through the DuPont factors for likelihood of confusion:

In testing for likelihood of confusion . . . the following, when of record,
must be considered: (1) The similarity or dissimilarity of the marks in their
entireties as to appearance, sound, connotation and commercial
impression. (2) The similarity or dissimilarity and nature of the goods or
services as described in an application or registration or in connection with
which a prior mark is in use. (3) The similarity or dissimilarity of
established, likely-to-continue trade channels. (4) The conditions under
which and buyers to whom sales are made, i.e. ‘impulse’ vs. careful,
sophisticated purchasing. (5) The fame of the prior mark (sales,
advertising, length of use). (6) The number and nature of similar marks in
use on similar goods. (7) The nature and extent of any actual confusion.
(8) The length of time during and conditions under which there has been
concurrent use without evidence of actual confusion. (9) The variety of
goods on which a mark is or is not used (house mark, ‘family’ mark,
product mark). (10) The market interface between applicant and the owner
of a prior mark. . . . (11) The extent to which applicant has a right to
exclude others from use of its mark on its goods. (12) The extent of
potential confusion, i.e., whether de minimis or substestablished fact probativeof the effect of use.

476 F.2d 1357, 1361 (C.C.P.A. 1973)

The pro se litigant went down in flames:

We have considered Hainline’s remaining arguments but find them unpersuasive.
We therefore affirm the board decision sustaining Vanity Fair’s oppositions to the
registration of Hainline’s marks.


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