Thrifty Rent-A-Car System v. Thrift Cars, Inc., 831 F.2d 1177 (1987) p.181

SUBJECT

priority and concurrent use

FACTS

Thrift car rental was sued by Thrifty for infringing its trademark. Thrift had mostly been a local chain. Thrifty was registerd in July 26, 1964 and was the first user of the mark. But before they registered Thrift was already using its name (so was Thrifty, but unregistered).

ISSUE

Is there justified concurrent use (can both use it at the same time)? Whether Thrift Cars had established a market presence in any locality, the extent of that market presence, and whether that market presence had been continuous within the meaning of § 1115(b)(5).

RATIONAL

The court allowed Thrift to keep using its mark in its local market. The court took into account the three factors to look at in order to justify concurrent use:
1. no knowledge of other use
2. local area market as of date of registration
3. continuous use

NOTES

If this action had come before 5 years of registration had elapsed, you would still have the defense of concurrent use, just that the validity of the mark might be challengable.

Created on: Thursday, January 27, 2000 at 17:59:36 (PST)