Justices Asked To Look At 'Extreme' TM Ruling Over 'Eye Dew'

By Tiffany Hu (April 14, 2021, 6:11 PM EDT) -- The U.S. Supreme Court has been urged to take up a skin care company's appeal of the Ninth Circuit's ruling that consumers were unlikely to be confused by competing eye creams bearing the same "Eye Dew" mark because the products otherwise look completely different.

In an April 8 petition for certiorari docketed Tuesday, California-based Arcona Inc. said the Ninth Circuit took an "extreme position" when it required that both the marks and products must be the same to find a presumption of consumer confusion.

Arcona said that the counterfeiting test under federal trademark law requires comparing the spurious — or inauthentic...

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