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En Banc Reconsideration Sought in FLANAX Case

By Ira S. Sacks & Rachel B. Rudensky on May 16, 2016
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Belmora LLC filed a petition for reconsideration en banc of the Fourth Circuit’s FLANAX decision in Belmora LLC v Bayer Consumer Care AG, Appeal No. 15-1335 (4th Cir. March 23, 2016). As we previously have blogged [here], the 4th Circuit reversed the Eastern District of Virginia’s dismissal for lack of standing, and found that use of the mark in the US is not a prerequisite to suit under § 43(a) for unfair competition or false advertising, or under § 14(3) for cancellation.

In its petition for reconsideration en banc [copy here], Belmora argues that the 4th Circuit panel decision warrants en banc review because “it (i) overlooked material facts and legal considerations; (ii) conflicts with decisions of the United States Supreme Court, this Court, and other U.S. circuit courts of appeal; and (iii) raises questions of exceptional importance regarding the scope of 15 U.S.C. §§1051 et. seq. (“the Lanham Act”).

The petition goes on:

In holding that a claimant need neither own nor have used a trademark in U.S. commerce to maintain a cause of action under either § 14(3) or § 43(a) of the Lanham Act, the panel decision appeared to be motivated by a sense of ethical outrage – misplaced, as will be shown – directed at one party as a result of which the Court, it is respectfully submitted, was regrettably too quick to throw out the legal baby with the equitable bathwater. In doing so, it jettisoned its own precedent, failed to address substantively significant authority that is in accord with that approach, and, by giving short shrift to the plain language of the statute and a forced reading of Lexmark Int’l Inc. v. Static Control Component, Inc., 134 Ct. 1377 (2014) threatened to undermine the integrity of the federal trademark system by widening any extant circuit split on this issue with a crowbar.

No doubt, more to come.

Photo of Ira S. Sacks Ira S. Sacks

Ira Sacks practices in the area of litigation with an emphasis on trademark and branding matters. He handles complex and high-profile cases involving trademark, copyright, and patent infringement issues, distribution disputes, false advertising, price fixing, dealer termination, monopolization and unfair competition, unfair trade…

Ira Sacks practices in the area of litigation with an emphasis on trademark and branding matters. He handles complex and high-profile cases involving trademark, copyright, and patent infringement issues, distribution disputes, false advertising, price fixing, dealer termination, monopolization and unfair competition, unfair trade practices, and trade secrets. Ira’s clients include fragrance and fashion companies as well as national scientific laboratories, real estate developers, and financial institutions.

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Photo of Rachel B. Rudensky Rachel B. Rudensky

Rachel Rudensky assists her clients in all facets of brand development around the world. She represents clients in a wide variety of sectors including, fashion, entertainment, hospitality, professional sports, healthcare, financial services, and consumer goods. Her practice encompasses trademarks, copyrights, and internet disputes…

Rachel Rudensky assists her clients in all facets of brand development around the world. She represents clients in a wide variety of sectors including, fashion, entertainment, hospitality, professional sports, healthcare, financial services, and consumer goods. Her practice encompasses trademarks, copyrights, and internet disputes involving domain names.

Read more about Rachel B. RudenskyEmail
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  • Posted in:
    Intellectual Property
  • Blog:
    Marks, Works, and Secrets
  • Organization:
    Akerman LLP

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