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and highlights the high hurdle nike air max litigants face that seek to exit lawsuits through voluntary-compliance air max sale measures such as covenants not to sue. Additionally, this case highlights why trademark holders should exercise caution when considering covenants not to sue as a litigation-exit strategy. In particular, trademark owners should balance the potential risk of cheap nike trainers an unfavorable judgment in a particular lawsuit against the potential loss of rights resulting from a covenant not to sue.BUFFALO, N.Y. -- St. Patrick's Day brings us many things to celebrate and sales are now at the top of that list.Just five years ago,
and then require the competitor and itsair max trainers business network to engage in costly, satellite proceedings air max uk to demonstrate that future production or sales might still be compromised, it would seem that the trademark nike air shoes holder’s burden to show the case is moot may fall well short of being formidable.Justice Kennedy’s concurrence closed by noting that, given the lower courts’ broad reading of Nike’s covenant not to sue,Nike will be barred from suing Already in the future for “any shoe that is not an exact copy or counterfeit version of the Air Force 1 shoe.”This case clarifies the burden-shifting framework applied under the voluntary-cessation doctrine,
Justice Kennedy wrote a concurring opinion nike air max joined by three other Justices, which underscored the “formidable burden” faced by litigants under the voluntary-cessation doctrine. In short, the concurrence made air max uk a case for enhanced scrutiny by courts in cases where a trademark plaintiff attempts to dodge an invalidity cheap nike air max counterclaim by mooting the case through a unilateral covenant not to sue:If the holder of an alleged trademark can commence suit against a competitor; in midcourse file a covenant not to sue;
the Court warned future trademark litigants air max 90 regarding the potential long-term pitfalls in relying on a covenant not to sue to escape unfavorable judgments. In particular, it noted that covenants not nike air max 90to sue “may be a risky long-term strategy for a trademark holder,” citing potential loss of rights through “naked licensing” or failure to air max 90 shoes police. The Court also noted that the Lanham Act safeguards against abusive litigation practices by providing an award of attorneys’ fees in exceptional cases.Finally,
regarding alleged unfair advantages christian louboutin shoes enjoyed by trademark “bullies” who could nfl jerseys interrupt a defendant’s business, supply chain, and capital flow through questionable infringement lawsuits, only to moot such cases “in the rare case where the little guy fights back.” Although the Court showed some sympathy towards Already’s concerns in dicta and in air max 90 Justice Kennedy’s concurring opinion noted below, it nonetheless held that such “sweeping” policy arguments fell short of supporting Article III standing.Notably,
but also any “colorable imitations thereof.”The prada borse burden then shifted to Already to show that it “engage[d] in or had sufficiently concrete plans to engage in activities not covered by the covenant,” i.e., an infringing air max shoes shoe that was not a “colorable imitation” of its existing shoe designs. The Court found that Already failed to nike air max show any such plans, despite a number of opportunities to do so at each stage of the litigation, including when specifically prompted at oral argument before the Court.The Court rejected Already’s “basic policy objection”
or otherwise used in commerce christian louboutin before or after the Effective Date of this Covenant.”The nfl jerseys Court stated that Nike met its “formidable burden.” Specifically, the Court observed that the covenant: (1) is unconditional and irrevocable; (2) prohibited any borsa prada claim or any demand; (3) protected Already and its distributors and customers; and (4) covered not only Already’s previous and current lines of shoes,
and employees of such entities and all customers . . . on nike air max account of any possible cause of action based on or involving trademark infringement, unfair competition, or dilution, under state or federal cheap nike air max law . . . relating to the NIKE Mark based on the nike air max appearance of any of Already’s current and/or previous footwear product designs, and any colorable imitations thereof, regardless of whether that footwear is produced . . .
the Court looked to the christian louboutin uk terms of Nike’s covenant not to sue to determine whetherNike’s nfl shop allegedly wrongful behavior (i.e., enforcement of its trade-dress rights against Already) could be reasonably expected to recur:“[Nike] unconditionally and irrevocably borse prada covenants to refrain from making any claim(s) or demand(s) . . . against Already or any of its . . . related business entities . . . [including] distributors . . .
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