S & L Vitamins, Inc. v. Australian Gold, Inc.

Memorandum of law of plaintiff and third party defendant in support of their motion for summary judgment, etc.


S&L Vitamins made this motion for summary judgment on its declaratory judgment complaint, and to dismiss the

counterclaims of defendant Australian Gold. S&L buys tanning lotion made by AG at retail tanning salons, in quantity, and hence these salons give S&L a favorable price. S&L then sells that merchandise on the Internet, truthfully describing it to consumers using the brand

names and product descriptions on the bottles. No law regulates or prohibits the purchase and sale of tanning lotion, on the Internet or elsewhere, regardless of quantity or where the seller purchased it.

Trademark law, of course, is designed to protect consumers by preventing customer confusion, not to protect a manufacturer?s inflated price structure and network of distributors by preventing truthful, accurate advertising and providing leverage via the expense of federal

litigation. AG?s claim that the S&L website could be confused with its own merely because S&L sells AG products is preposterous and supported by no evidence of actual confusion, no survey and no expert testimony. In addition, the emerging consensus in this Circuit is that search-engine advertising does not constitute ?trademark use? that could give rise to infringement liability. Moreover, S&L?s activities are protected under the first sale and nominative fair use doctrines, which permit the sale and advertisement of a trademark-protected product, without regard to the trademark owner?s approval. Similarly, AG?s dilution claims for are baseless; their marks have no fame.

AG also claimed that S&L interfered with the contracts between AG and its distributors. Yet after three years of investigation and litigation, there was no proof that S&L ever did business with a distributor; no proof that S&L was awareof specific distribution agreements with specific

distributors as required by the law; and no proof that S&L owned, controlled or otherwise connived with affiliated retailers to induce distributors to sell to S&L.

LOADING PDF: If there are any problems, click here to download the file.

Written by:


Archer & Greiner, PC on:

Popular Topics
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:

Sign up to create your digest using LinkedIn*

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.

Already signed up? Log in here

*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.