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Court holding that generic "mark" can form basis for passing off claim

Court holding that generic "mark" can form basis for passing off claim

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Published by Daniel Ballard
Squishy - but effective - area of trademark law. Passing off claim can be viable even when the defendant uses plaintiff's generic "mark." [Read highlighted sections]
Squishy - but effective - area of trademark law. Passing off claim can be viable even when the defendant uses plaintiff's generic "mark." [Read highlighted sections]

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Published by: Daniel Ballard on Dec 30, 2010
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11/10/2011

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Plaintiff alleges in Counts III and IV that the Hicklins have engaged in unfair
competition under § 43(a) of the Lanham Act.24

In Count III, Plaintiff alleges that the

24

(...continued)
Inc., 35 F.3d 1226, 1241 (8th Cir. 1994).

25

“The terms ‘palming off’ and ‘passing off’ are used interchangeably to refer to
various types of activities or trade practices which lead the consumer to believe he or she
is purchasing one product when actually he or she is purchasing another product.” Roulo
v. Russ Berrie & Co., Inc.
, No. 82 C 2668, 1986 WL 4718, at *5 n.2 (N.D. Ill. Apr. 14,
1986).

35

Hicklins’ “use of the term ‘overhead’ in the context of their advertising and other
representations to consumers and potential consumers . . . constitutes unfair competition
and/or a false designation of origin.” Second Amended Complaint at ¶ 29. Plaintiff
alleges that the Hicklins’ conduct is “likely to deceive and has deceived customers and
potential customers into believing that [the Hicklins’] garage door installation and repair
services are those of [Plaintiff] and/or are affiliated with [Plaintiff].” Id. at ¶ 30. In
Count IV, Plaintiff alleges that the Hicklins have “misrepresented the nature,
characteristics, qualities or geographic origin of their services and commercial activities
. . . .” Id. at ¶ 35.

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