Shalom Children's Wear, Inc. v. In-Wear, - (1993) p.210

SUBJECT

acquisition: intent to use

FACTS

Mark had been used in advertising, ordering goods, but not on goods shipped or sold in interstate commerce (which would be necessary for registration).

ISSUE

Does use before actual commerce constitute use?

HOLDING

YES it does constitute use.

NOTES

LESSON: the opposer made a tactical mistake in this case; they attacked the mark as being descriptive of applicant's product; dumb because the challangers wanted it themselves. Constitutes an admission that your own mark is descriptive. Probably happened because attorney just copied a form book for complaint. Don't overplead. Can always file an amendment to complaint.

Created on: Tuesday, February 01, 2000 at 17:42:26 (PST)