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Marshak v. Treadwell

A court order canceling plaintiff's federally registered service mark for "The Drifters" was affirmed because there was no time limit barring the assertion by defendants, in defense to plaintiff's infringement claim, that plaintiff had fraudulently procured the mark and was infringing upon senior common law rights to the name.

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Argued: January 13, 2000

OPINION OF THE COURT

This is an appeal from orders enter ed by the District Court after a trial concerning the right to use the mark “The Drifters” for a singing group. Larry Marshak, who acquired a federally registered service mark for “The Drifters” name in 1978, brought this action against Faye Treadwell and others, claiming that they were infringing his mark. The defendants contended that Marshak’s federally registered mark had been procur ed by fraud and that Marshak was infringing senior common-law rights. After a trial and post-trial motions, the District Court or dered that Marshak’s federally registered mark be canceled, permanently enjoined Marshak from using the mark in commerce, and required an accounting of all profits received by Marshak since he began using the mark. Marshak then took this appeal. We affir m in part and dismiss in part for lack of appellate jurisdiction.

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