Tabberone is pronounced tab ber won not tay ber own

Tabbers Temptations     www.tabberone.com/Trademarks/ Home | Site Index | Disclaimer | Email Me! "The only thing necessary for the triumph of evil is for good men to do nothing" Edmund Burke

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

From Charles Of The Ritz Group Ltd v Quality King Distributors, 832 F.2d 1317 (2nd Cir 1987) Finally, appellants claim that the district court failed to consider the effect of its proposed disclaimer in alleviating any confusion. Recently, the Second Circuit has squarely addressed the value of disclaimers as a cure for an otherwise infringing slogan. In Home Box Office, Inc. v. Showtime/The Movie Channel Inc., 832 F.2d 1311 (2d. Cir. 1987), this court considered and rejected appellants' claim that disclaimers are a favored way of alleviating substantial consumer confusion. In that case, the district court had enjoined Showtime from using its slogans unless they were accompanied by disclaimers adequate to avoid confusing consumers. The Second Circuit reversed that portion of the order which accepted the disclaimers, holding that the infringer has an affirmative duty to come forward with "evidence sufficient to demonstrate that any proposed material would significantly reduce the likelihood of consumer confusion." Id. at 1316. Showtime had not met this burden. Similarly, Deborah International has failed to come forth with any evidence whatsoever to support its contention that the disclaimer would reduce consumer confusion. A growing body of academic literature has concluded that disclaimers, especially those similar to the disclaimer here, which employ brief negator words such as "no" or "not," are generally ineffective. See, e.g., Jacoby & Raskoff, Disclaimers as a Remedy for Trademark Infringement Litigation: More Trouble Than They Are Worth?, 76 Trademark Rept. 35, 54 (1986). See also, Radin, Disclaimers as a Remedy for Trademark Infringement: Inadequacies and Alternatives, 76 Trademark Rept. 59 (1986), 2 H. Nims, Unfair Competition and Trademarks § § 366f, 379a (4th ed. 1947). Disclaimers can often prevent consumer confusion. See Soltex Polymer Corporation v. Fortex Industries, Inc., 832 F.2d 1325 (2d Cir. 1987) (minimum to moderate amount of consumer confusion found by district court could be cured effectively by the use of a disclaimer). In this case of substantial confusion, however, the district court judge was well within his discretion in requiring that the disclaimer be prominent and also indicate that the two companies were competitors, rather than allowing the current ambiguous wording "not related to."