Debby Wong /
25 July 2014Trademarks

New York Jets, Anheuser-Busch triumph in trademark ruling

American football team the New York Jets and beer manufacturer Anheuser-Buschhave again fended off a claim that they infringed the trademark ‘Ultimate Fan’.

The lawsuit was brought by sports marketing company Action Ink, which had registered a service mark for ‘Ultimate Fan’ to protect promotional contests at sporting events.

But the company conducted no contests between 1995 and 2012, at which point it sued the defendants for trademark infringement in separate cases.

In the 17 years between registering the mark and taking legal action, Action Ink had sent out letters to many businesses alleging infringement. It had also unsuccessfully tried to attract interest from potential clients in holding promotional contests.

In court last year, Action Ink’s claim was rejected. Judge Milazzo at the US District Court for the Eastern District of Louisiana awarded summary judgment to the defendants, saying Action Ink had abandoned its service mark and therefore had no valid mark that could have been infringed.

Action Ink appealed, but the case was again rejected on July 23 at the US Court of Appeals for the Fifth Circuit.

Affirming the earlier ruling, Judges Jolly, Southwick and Haynes wrote that because Action Ink performed no contests between 1995 and 2012, “there was nothing left for its mark to symbolise”.

Andy Baum, partner at Foley & Lardner LLP who represented the New York Jets in the case, said the decision represents a defeat for what can only be described as a “trademark troll”.

“The plaintiff owned a federal trademark registration but had done no actual business under its mark for at least 17 years. Meanwhile, it wrote dozens of cease-and-desist letters to deep-pocketed companies that made any sort of use of the commonplace term ‘ultimate fan’, seeking to extract settlement payments.

“Our client stood up to this bully and revealed that its alleged trademark rights were a sham. The case is a reminder that trademark rights arise only from actual use in a business, not from registration at the trademark office. Where there is no actual business, there are no trademark rights,” he said.

Action Ink could not be reached for comment.

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