10th Circ. Revives TM Fight Against Vape Accessories Co.

Law360 (August 27, 2019, 8:41 PM EDT) -- A California apparel company will get another chance to argue that an e-cigarette accessories merchant infringed its trademarks after the Tenth Circuit on Tuesday ruled that the lower court erred in finding that customers would not be confused.

In a published opinion, a three-judge panel revived a suit brought by Affliction Holdings LLC alleging that Utah Vap Or Smoke LLC sold products that infringe its registered marks containing the word “Affliction” and an upside-down fleur-de-lis inside a circle.

Although some considerations weighed against finding a “likelihood of confusion,” such as the lack of specific evidence that customers were actually confused, the panel...

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