Decisions: Nov. 15, 2007

eBay trademark relief upheld

Case: Perfumebay.com v. eBay Inc.
Court: 9th Circuit
Date: Nov. 5, 2007

Facts: Internet perfume seller used both conjoined and non-conjoined forms of "perfumebay" as trademarks. After eBay opposed its trademark application, Perfumebay filed for declaratory relief, seeking a judgment that its marks do not infringe on eBay's mark or otherwise violate the Lanham Act. A trial judge found a likelihood of confusion and enjoined Perfumebay from depicting "Perfume Bay" as a single word. The court also held that the Perfumebay marks did not produce a likelihood of dilution.

Holding: Perfumebay "failed to establish that the district court abused its discretion" in granting eBay injunctive relief. "eBay and Perfumebay's services are similar, as they both sell perfume on Internet web sites and utilize search engines extensively for attracting customers. A broad injunction addressing such similarities 'is especially appropriate.'" But the court reversed on the dilution claim, finding that "it does not appear that the district court fully considered the highly distinctive qualities of eBay's famous mark."

Attorneys of Record: Ronald St. Marie, Chan Law Group, Los Angeles, for
Perfumebay.com; John Crittenden, Cooley Godward, San Francisco, for eBay.

To read the full opinion, click here.




9th Cir. affirms Cirque termination

Case: Brown v. Cirque du Soleil Nevada
Court: U.S. 9th Circuit Court of Appeals
Date: Nov. 1

Facts: Marcie Brown alleged she was illegally fired from her position as a cellist in the Cirque du Soleil band because of her age. The band leader, she said, imitated her as an old lady and her supervisor referred to her as "experienced," "senior" and a "veteran." Cirque stated as its reasons for termination that Brown had a negative attitude and behaved unprofessionally. Two other members of the band and the band leader were fired at the same time. A trial judge summarily dismissed the case.

Holding: The court affirmed the summary judgment ruling, concluding that Brown "failed to offer evidence that the reason for her termination was a pretext for age discrimination." The "old lady" imitation and the supervisor's remarks did not show a discriminatory motive since "the band leader was not involved in the decision to discharge Brown and was fired at the same time as Brown, and there was no nexus between the supervisor's comments and the decision to discharge Brown."

Attorneys of Record: N/A.

To read the full unpublished opinion, click here.
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