Sunday, August 16, 2009

Partial Summary Judgment In John Daly v. Hippo Golf Trademark Infringement Case

In John Daly Enterprises, LLC v. Hippo Golf Co., Inc., 646 F. Supp. 2d 1347 (S.D. Fla. 2009), the district court granted the plaintiff's motion for summary judgment in part and denied it in part.  The plaintiff brought action the against for defendant's alleed breach of contract and infringement of plaintiff's intellectual property rights based on defendant's alleged display of plaintiff's name and likeness on its website.  The plaintiff also sought to pierce defendant's corporate veil. 

The court stated:
Infringement of a federally registered mark does not require use of the actual mark or a counterfeit thereof. Rather, it may include only a “colorable imitation” of the mark. 15 U.S.C. § 1114(1)(a). A mark is a colorable imitation if it “so resembles a registered mark as to be likely to cause confusion.” Id. § 1127. A mark may thus infringe a registered mark without using the entirety of the registered mark. In other words, “[i]t is not necessary that the alleged infringer use all aspects of the registered mark for likely confusion to result. For example, under the likelihood of confusion test, defendant is an infringer where it reproduces the words, but not the background design logo, of the plaintiff's registered composite mark.” 4 J. Thomas McCarthy, McCarthy on Trademarks and Unfair Competition § 23.76 (4th ed.2009) (quotation omitted).

The court granted the motion as to the alleged breach of contract noting that "Defendant has admitted liability on the breach of contract claim."  The court also ruled in favor of the plaintiff on the claim for violations of Fla. Stat. § 540.08.  The court, however, denied the motion as to damages and refused to pierce the corporate veil. 

The decision is below:

John Daly Enterprises, LLC v. Hippo Golf Co., Inc., --- F.Supp.2d ----, No. 08-61401-CIV, 2009 WL 2488272 (...

*Disclaimer: Jeffrey Kuntz and/or GrayRobinson, P.A. were involved in the above-referenced action.


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