Tabberone is pronounced tab ber won not tay ber own

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This information is taken directly from the court opinion. It is not taken out of context nor is it altered.

From Creative Gifts v. UFO, 235 F.3d 540 (10th Cir. 2000) We reject that new-fashioned "acquiescence" argument because Sherlocks never raised it below. Acquiescence is an affirmative defense that requires a "finding of conduct on the plaintiff's part that amounted to an assurance to the defendant, express or implied, that plaintiff would not assert his trademark rights against the defendant" (Kellogg Co v. Exxon Corp., 209 F.3d 562, 569 (6th Cir. 2000), quoting language originating in Sweetheart Plastics, Inc. v. Detroit Forming, Inc., 743 F.2d 1039, 1046 (4th Cir. 1984)). Acquiescence requires proof even more demanding than a showing (which would suffice for a laches defense) that the party seeking to enforce its trademark rights has unreasonably delayed pursuing litigation and, as a result, has materially prejudiced the alleged infringer (Kellogg, id.).