C. Famous and distinctive
The defendant misrepresented that its cost-estimating software copied from the plaintiff performed as well as the plaintiff's product, which creates an independent basis for liability under the Lanham Act. Manufacturers Technologies, Inc. v. Cams, Inc. (1989) 706 F.Supp. 984, 10 USPQ 2d 1321.
A security software maker was not entitled to a preliminary injunction barring a competitor from using a red octagonal stop sign on its products because it did not demonstrate that it was likely to succeed on the merits of its claims of trademark dilution under the Lanham Act (15 USCS § 1125(c)) and under Washington State code. The stop-sign image was not famous and distinctive, and the competitor raised a strong fair-use defense under 15 USCS § 1115(b)(4). The software vendor did not demonstrate that the balance of hardships tipped sharply in its favor. eAcceleration Corp. v. Trend Micro, Inc. (2006) 408 F.Supp.2d 1110.
The trademark holder for payroll software proved violations of the Anti-Cybersquatting Consumer Protection Act (15 USCS § 1125(d)), so the holder was entitled to a default final judgment. The holder established that the mark was distinctive and registered under 15 USCS § 1052(e). The holder also established the competitor's bad-faith intent to profit by diverting consumers of time-keeping software away from the holder. The holder also established the competitor's willful infringement of the trademark. Punch Clock, Inc. v. Smart Software Development (2008) 553 F.Supp.2d 1353.
There was no error by a district court that weighed Sleekcraft factors and concluded that the senior user failed to raise a triable issue relating to the likelihood of confusion where the junior user's use of the senior user's trademark was not likely to confuse many people about the source of the product. The senior user failed to present evidence to justify to a trier of fact that the junior user (who had 20 years of experience in the music industry) intended to capitalize on the senior user's music industry administrative software trademark. M2 Software, Inc. v. Madacy Entertainment (2005) 421 F.3d 1073, 76 USPQ 2d 1161.
The term "CD-CREATOR" describes software used to create a CD-ROM and has not acquired a secondary meaning from limited use. Therefore, summary judgment of non-infringement is granted to defendant who is using "COREL CD CREATOR" for similar products. Lewis Management Co. v. Corel Corp. (1995) 36 USPQ 2d 1534.
The word "retrieve" or derivatives are used by several Internet companies, as are images of Labrador dogs and other breeds to represent Internet-related products and services. Therefore, the plaintiff's "LABRADOR" mark is descriptive rather than suggestive. The plaintiff's motion for preliminary injunction is denied. Labrador Software, Inc. v. Lycos, Inc. (1999) 32 F.Supp.2d 31, 49 USPQ 2d 1952.
B. Designation of origin