Tabberone is pronounced tab ber won
not tay ber own
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Tabberone is pronounced tab ber won |
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| American Footwear Corp. v. General Footwear Co. Ltd., 609 F.2d 655, C.A.N.Y., 1979 |
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American Footwear Corporation (American) in a suit for declaratory relief sought an injunction against infringement of its trademark "Bionic" in
connection with the promotion and sale of footwear.
Lower Court enjoined General Footwear and Universal City Studios from asserting exclusive rights to use of the term "Bionic" in connection with the promotion and sale of footwear, but in no way interferes with Universal's trademark rights in its T.V. shows or its licensing operations in respect thereto. Universal had not registered or applied for registration of "Bionic" as a trademark prior to the time American selected the mark and applied for registration so no statutory trademark issues were involved. Relying primarily upon American's priority of use, the lower court concluded that American established its right to use "Bionic" in connection with the promotion and sale of its footwear, and therefore, as a result of Universal's "Buyers Beware" advertisement, designed to create the impression that American was guilty of trademark infringement, American had suffered irreparable injury. Based upon the foregoing facts, the court determined that American had established its entitlement to an injunction against Universal for trademark infringement and unfair competition. The court held that "Bionic" as used by American was an arbitrary mark, whereas its use by Universal was a descriptive term (I. e., bionic man, bionic woman, bionic boy, bionic dog), and Universal had therefore failed to establish a right to be accorded use priority over American. The Court also held that "(t)he word bionic has not been shown to have acquired a secondary meaning so that the public associates the term with Universal or its TV series". HELD: injunction lifted and American Footwear is not infringing upon the use of the word "Bionic"> |
