United States Ninth Circuit

In an action by Fortune Dynamic, Inc., the owner of the incontestable trademark DELICIOUS for footwear, against Victoria's Secret for trademark infringement, summary judgment for defendant is reversed where: 1) there was an issue of material facts as to whether consumers were likely to be confused as to the source of Victoria's Secret's pink tank top that read "Delicious"; and 2) although it was possible that Victoria's Secret used the term "Delicious" fairly -- that is, in its "primary, descriptive sense" -- a jury was better positioned to make that determination.

Appellate Information

• Decided 08/19/2010
• Published 08/19/2010

Judges

• Jay S. Bybee

Court

• United States Ninth Circuit

Counsel

• For Appellant:
  
• James C. Fedalen, Diana M. Torres