The Second Circuit recently announced a split with the Sixth Circuit regarding the pleading requirements for trademark infringement under the Lanham Act, 15 U.S.C. §§ 1114, 1125. See Brown v. Harpo et al., 717 F.3d 295 (2d Cir. N.Y. 2013). In both Circuits, plaintiffs are required to allege, among other things, that the allegedly infringing mark has been “used in commerce.” However, the Second and Sixth Circuits have different interpretations of what it means to use a mark in commerce for purposes of satisfying the Lanham Act.
In Brown, Defendants argued that Plaintiff failed to allege that Defendants used the mark at issue as a trademark in commerce, an essential element of trademark infringement. Defendants relied on cases from the Second and Sixth Circuits in support of their position. The District Court agreed with Defendants and dismissed the case.
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