Midwestern Pet Foods, Inc. v. Societe Des Produits Nestle S.A.
Case #: 2011-1482
Bryson, Mayer, Dyk
Full Text Opinion: http://www.cafc.uscourts.gov/images/stories/opinions-orders/11-1482.pdf
Trademarks: Evidence of fame that postdates an intent-to-use application is relevant to a showing of a likelihood of confusion.
Opinion (Bryson): Midwestern Pet Foods (Midwestern) applied for registration of the mark WAGGIN’ STRIPS. Societe Des Produits Nestle (Nestle), who owns the registered mark BEGGIN’ STRIPS, opposed registration and Midwestern’s application was denied. Midwestern appealed the Trademark Trial and Appeal Board’s decision to allow Nestle to rely on evidence of fame for its BEGGIN’ STRIPS mark that post-dated Midwestern’s filing of the application for registration of WAGGIN’ STRIPS. The Court of Appeals held that, while a dilution claim requires the opposition to prove the fame of their mark prior to the filing date of an intent-to-use application, a likelihood of confusion can be shown with evidence of the mark’s fame after filing of an intent-to-use application. The Appeals Court AFFIRMED the Board’ finding of a likelihood of confusion.