In This Issue:

- Supreme Court Affirms Dismissal Based on Nike's Broad Covenant Not to Sue

- Hershey Cannot Kiss SWISSKISS Chocolates Goodbye

- Luulemon's Design Mark is Rejected as Merely Ornamental

- Excerpt from Supreme Court Affirms Dismissal Based on Nike’s Broad Covenant

Not to Sue:

In a unanimous decision, the U.S. Supreme Court ruled that by granting to the defendant a broad covenant not to sue, Nike was entitled to dismissal of counterclaims challenging the validity of Nike’s asserted trade dress.

Nike filed suit against Already LLC alleging that two styles of shoes made by Already infringed upon Nike’s federally registered trade dress for its “Air Force 1” shoe. Already brought counterclaims asking the court to declare that Already did not infringe, to rule that Nike had no valid trade dress rights, and to cancel Nike’s federal registration. Nike later withdrew its infringement claims and granted Already a covenant not to sue. Nike’s decision to grant the covenant not to sue was based on its conclusion that Already’s conduct was not harmful enough to warrant further litigation. Already, however, wanted to maintain its challenge to Nike’s trade dress rights.