Affliction’s Trademark Claims Against Utah Vape Shop Reinstated
Written September 5, 2019
The US Court of Appeals for the Tenth Circuit on August 27, 2019, reversed a grant of summary judgment in favor of a Utah vape shop in a trademark infringement suit. Affliction Holdings LLC v. Utah Vap or Smoke LLC, 10th Cir., No. 18-4146, 8/27/19.
Affliction is a California clothing company known largely in connection with mixed martial arts. It sued Utah Vap or Smoke LLC for infringing a trademark made of an upside-down fleur-de-lis inside a circle with the words “Affliction Live Fast” in Gothic lettering. Utah Vap’s marks have a right-side-up fleur-de-lis inside a circle with the words “Vape Affliction” in a different font. The district court granted Utah Vap summary judgment, ruling that no reasonable juror could find a likelihood of confusion between the marks.
The Tenth Circuit reversed because marks are highly similar and Affliction’s mark is “both conceptually and commercially strong,” which created a genuine fact issue as to whether confusion was likely.
Affliction is a California clothing company known largely in connection with mixed martial arts. It sued Utah Vap or Smoke LLC for infringing a trademark made of an upside-down fleur-de-lis inside a circle with the words “Affliction Live Fast” in Gothic lettering. Utah Vap’s marks have a right-side-up fleur-de-lis inside a circle with the words “Vape Affliction” in a different font. The district court granted Utah Vap summary judgment, ruling that no reasonable juror could find a likelihood of confusion between the marks.
The Tenth Circuit reversed because marks are highly similar and Affliction’s mark is “both conceptually and commercially strong,” which created a genuine fact issue as to whether confusion was likely.