Motorcycle Apparel Company’s Efforts to “Tack” Prior Use of “O” Mark Not Sufficient, Ninth Circuit Rules

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“We venture into the world of motocross racing to determine whether federal trademark law protects a motorcycle apparel company's use of a stylized 'O' on its products.”

So begins the Ninth Circuit?s August 24, 2009, opinion in One Industries, LLC v. O’Neal Distributing, Inc., 2009 U.S. App. LEXIS 18967 (9th Cir. August 24, 2009), in which the Court would answer this question in the negative. This case is significant for two reasons: (1) it serves as an example of how issues of “tacking” – the act of trying to prove earlier use of a mark in order to achieve priority over an intervening user – can play a crucial role early in a case before discovery has commenced; and (2) it reminds trademark owners of the high standard that courts apply when considering issues of tacking, and of the risks associated with such issues.

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