Arcona, Inc. v. Farmacy Beauty, LLC, No. 19-55586 (9th Cir. 2020)
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The Ninth Circuit affirmed the district court's grant of summary judgment for Farmacy Beauty in an action brought by Arcona, alleging trademark counterfeiting claims based on the use of the trademarked term "EYE DEW" on its skincare products.
The panel held that the plain language of the Lanham Act, 15 U.S.C. 1114, requires a likelihood of confusion for a trademark counterfeiting claim. The panel will not presume consumer confusion in this case because the products are not identical. Therefore, summary judgment was proper because there is no genuine dispute of material fact about the likelihood of consumer confusion.
Court Description: Trademark The panel affirmed the district court’s grant of summary judgment in favor of Farmacy Beauty, LLC, in a trademark counterfeiting action brought by Arcona, Inc. Arcona alleged counterfeiting based on Farmacy’s use of the trademarked term “EYE DEW” on its skincare products. The district court granted summary judgment on the ground that a reasonable consumer would not confuse Farmacy’s skincare product with Arcona’s because their respective packaging featured different shapes, design schemes, text, and colors. Agreeing with other circuits, the panel held that the plain language of the Lanham Act, 15 U.S.C. § 1114, requires a likelihood of confusion for a trademark counterfeiting claim. The panel declined to presume confusion because the products were not identical. The panel held that summary judgment was proper because there was no genuine dispute of material fact about the likelihood of consumer confusion, and the district court properly compared the products as a whole, rather than limiting analysis to the identical EYE DEW marks. ARCONA V. FARMACY BEAUTY 3
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