Blue Bell, Inc. v. Farah Manufacturing Co., 508 F.2d 1260 (1975) p.160

SUBJECT

Priority and concurrent use

ISSUE

Which party established prior use of the mark in trade. Whether Farah's sale and shipment of slacks to twelve regional managers constitutes a valid first use of the Time Out mark.

RULE

Secret, undisclosed internal shipments are generally inadequate to support the denomination "use." Mere adoption of a mark without bona fide use, in an attempt to reserve in for the future, will not create trademark rights.

HOLDING

What is the test for establishing priority of trademark (who gets to use mark if both started using it around the same time)?
Test is who is first to make a bona fide sale or shipment to intended market and on the intended product or service that you intend to use it.

RATIONAL

Internal shipments are not valid for trademark reservation because salespeople are not intended purchasers of product.

Created on: Tuesday, January 25, 2000 at 18:08:17 (PST)