Bona Fde Aff Updates - Michigan 7 2024 HHIRS

Bona Fide Updates---HHRS
Aff
1AC Inherency
Most recent court case proves de minimis sales still don’t cut it.
*The card is short because it’s a 61 page court brief – this is the important part*
TTAB 17 – Trademark Trial and Appeal Board, 6-21-2017, " Executive Coach Builders, Inc. v. SPV Coach Company, Inc.,” Trademark Trial and Appeal Board, https://casetext.com/admin-law/executive-coach-builders-inc-v-spv-coach-company-inc /$antiP/
Individually and collectively, we find that these isolated and de minimis uses of the ARMBRUSTER/STAGEWAY mark other than on vehicles are insufficient to constitute bona fide use of that mark in the ordinary course of trade.
XT---Executive Coach Builders, Inc. v. SPV Coach Company, Inc
It’s the same situation as CFFC v. Adidas but more recent – prefer our evidence.
*Not a huge reason to read this unless they say your evidence isn’t about theirs*
TTAB 17 – Trademark Trial and Appeal Board, 6-21-2017, " Executive Coach Builders, Inc. v. SPV Coach Company, Inc.,” Trademark Trial and Appeal Board, https://casetext.com/admin-law/executive-coach-builders-inc-v-spv-coach-company-inc /$antiP/
SPV Coach Company, Inc. (“Applicant”) seeks to register the mark ARMBRUSTER STAGEWAY (in standard characters) on the Principal Register for “vehicles, namely, customized limousines” in International Class 12.1 Executive Coach Builders, Inc. (“Opposer”) opposes registration under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), asserting priority and a likelihood of confusion with its pleaded common-law mark ARMBRUSTER/STAGEWAY, which, as can be seen, differs from Applicant’s mark by the use of a forward slash, rather than a space, between the two words. Applicant, in turn, asserts as an affirmative defense that Opposer “has abandoned its ARMBRUSTER/STAGEWAY mark and is without valid rights upon which it may state a claim upon which relief can be granted.”2 The parties in this opposition are secondary manufacturers of the types of specialty vehicles at issue in this case – stretch limousines and hearses, for the VIP and funeral markets – made from vehicle chassis manufactured by others, such as Cadillacs and Lincolns.
AT: CFFC v. Adidas
Most recent court case proves CFFC v. Adidas isn’t applicable – it was about what could get regulated by Congress, not trademarks.
*CFFC v. Adidas was not about trademarks, just what could get regulated by Congress*
USPTO 23 – United States Patent and Trademark Office, 11-1-2023, " Adamson Systems Engineering, Inc. v. Peavey Electronics Corporation", Trademark Trial and Appeal Board, https://ttabvue.uspto.gov/ttabvue/ttabvue-92076586-CAN-51.pdf /$antiP/
Respondent tries to liken its de minimis domestic sales from 2016-2021 to Christian Faith Fellowship Church v. Adidas, where a church’s pre-registration sale of two hats bearing its mark sufficed to support registration of the mark.83 As Petitioner correctly observes, however, that case did not concern abandonment, but the scope of commerce that may be regulated by the U.S. Congress.84 Christian Faith Fellowship Church v. Adidas AG, 841 F.3d 986, 120 USPQ2d 1640 (Fed. Cir. 2016); Ahal Al-Sara Group for Trading v. American Flash, Inc., 2023 USPQ2d 79, *7-8 (TTAB 2023). Respondent’s sales to dealers in the United States and Puerto Rico fall within that scope, but from 2016-2021, fell to de minimis or zero, year to year.
CFFC v. Adidas is about trademark abandonment – this is distinct from the AFF which enables startups to get these trademarks in the first place – AND CFFC was a unique circumstance that isn’t applicable widely.
*not a real point to reading this due to the card above but this is good for context*
Rudensky 19 – Rachel Rudensky, 12-2-2019, "Unitary Design Mark Rescues a Phrase Which Failed To Function As A Trademark", Case Text, https://casetext.com/analysis/unitary-design-mark-rescues-a-phrase-which-failed-to-function-as-a-trademark?sort=relevance&resultsNav=false&q= /$antiP/
On remand, the Board first considered the question of whether CFFC’s lack of sales of any caps and minimal sales of shirts during the relevant period constituted “abandonment” under the Lanham Act. In general, Section 45 of the Lanham Act, 15 U.S.C. § 1127, provides for a rebuttable presumption of abandonment if a trademark has not been used during a three-year period. In this case, there was evidence that the CFFC sold two shirts during the relevant period. As the Federal Circuit had held, there is no de minimis test for “use in commerce.” Accordingly, the sale of two shirts was enough to overcome the abandonment claim as to shirts.
The Board likewise found that CFFC did not abandon use of the marks on caps. Though there was no sale of caps for a period of four years, the Board was satisfied that such non-use was “excusable” under the Lanham Act because the CFFC’s store was closed for renovation during that time. Trademark nonuse may be considered excusable where the holder of the registration is willing and able to continue use of the mark in commerce, but is unable to do so due to circumstances beyond its control. Therefore the Board rejected adidas’s abandonment claims.
AT: De Minimis Now
They misconstrue what de minimis is in the context of – the case they cite is about Congress being able to regulate illegal sales of marijuana NOT trademarks.
*Again not the most useful given the card at the top but still good for context to NEG arguments*
Weinberg 17 – Peter Weinberg, 7-1-2017, "Use in commerce for federal trademark registration: the Federal Circuit slowly moves towards the Supreme Court", No Publication, https://casetext.com/analysis/use-in-commerce-for-federal-trademark-registration-the-federal-circuit-slowly-moves-towards-the-supreme-court?sort=relevance&resultsNav=false&q= /$antiP/
In Gonzales v. Raich, the Court upheld the federal prohibition of marijuana under Congress’ Commerce Clause power, even as to a medical marijuana patient who grew marijuana for her own use and not for sale or distribution to anyone.See 545 U.S. 1, 1-10 (2005). The Court explained that when “a general regulatory statute bears a substantial relation to commerce, the de minimis character of individual instances arising under that statute is of no consequence.”Id. at 17 (internal quotations omitted). The Court further explained that “[o]ur case law firmly establishes Congress’ power to regulate purely local activities that are part of an economic ‘class of activities’ that have a substantial effect on interstate commerce.” Id.; see also Taylor v. US, 136 S. Ct. 2074, 2081 (2016) (“And it makes no difference under our cases that any actual or threatened effect on commerce in a particular case is minimal.).
AT: Pre-Registration
Pre-registration still abides by the current “used in commerce” standard which means there will still be heavy presumption against startups even if it is bona fide.
*Contextualize this with the inherency stuff at the top*
§1051(b) of U.S. Code § 1051 ND – "15 U.S. Code § 1051", Cornell Law School – Legal Information Institute, https://www.law.cornell.edu/uscode/text/15/1051 /$antiP/
(b) Application for bona fide intention to use trademark
(1) A person who has a bona fide intention, under circumstances showing the good faith of such person, to use a trademark in commerce may request registration of its trademark on the principal register hereby established by paying the prescribed fee and filing in the Patent and Trademark Office an application and a verified statement, in such form as may be prescribed by the Director.
(2) The application shall include specification of the applicant’s domicile and citizenship, the goods in connection with which the applicant has a bona fide intention to use the mark, and a drawing of the mark.
(3) The statement shall be verified by the applicant and specify—
(A) that the person making the verification believes that he or she, or the juristic person in whose behalf he or she makes the verification, to be entitled to use the mark in commerce;
(B) the applicant’s bona fide intention to use the mark in commerce;
(C) that, to the best of the verifier’s knowledge and belief, the facts recited in the application are accurate; and
(D) that, to the best of the verifier’s knowledge and belief, no other person has the right to use such mark in commerce either in the identical form thereof or in such near resemblance thereto as to be likely, when used on or in connection with the goods of such other person, to cause confusion, or to cause mistake, or to deceive.
Except for applications filed pursuant to section 1126 of this title, no mark shall be registered until the applicant has met the requirements of subsections (c) and (d) of this section.
(4) The applicant shall comply with such rules or regulations as may be prescribed by the Director. The Director shall promulgate rules prescribing the requirements for the application and for obtaining a filing date herein.
AT: Analogous Use
Analogous use still suffers from heavy preemption which means the AFF is key – this is the court case their evidence cites.
*Same thing here – contextualize with the card at the top*
USDA DC Circuit 08 – United States Court of Appeals, District of Columbia Circuit, April 29, 2008, “AKTIESELSKABET AF 21 NOVEMBER 2001 v. FAME JEANS INC (2008)", Findlaw, https://caselaw.findlaw.com/court/us-dc-circuit/1471864.html /$antiP/
Since Fame Jeans filed its application on January 9, 2004, Bestseller must establish use, either actual or constructive, before that date.7 Constructive use can arise under § 7(c), which grants priority, based on filing date, to a U.S. application or to a foreign application that was followed by a timely U.S. application under § 44(d). Bestseller filed a U.S. application on December 6, 2004, based on its 1991 Danish registration. It neither complied with the six-month timeliness requirement of § 44(d) nor even filed its application under § 44(d). Therefore, Bestseller cannot demonstrate any constructive use prior to Fame's filing date. However, Bestseller has adequately alleged actual use. Although the complaint does not set forth trademark use to earn Bestseller rights in the Jack & Jones mark, an opposer who has made enough “analogous” use can still defeat a registration. See Malcolm Nicol & Co. v. Witco Corp., 881 F.2d 1063, 1065 (Fed.Cir.1989) (quoting 3 McCarthy, supra, § 20:4 (1984)).
First, Bestseller fails to allege actual use in the most straightforward way, by showing its own protectible right to the Jack & Jones trademark in the United States. At common law, “prior ownership of a mark is only established as of the first actual use of a mark in a genuine commercial transaction.” Allard Enters., Inc. v. Adv. Programming Res., Inc., 146 F.3d 350, 358 (6th Cir.1998). The 1988 amendments to the Lanham Act codified a standard of “use in commerce,” necessary for a valid trademark registration, which means “the bona fide use of a mark in the ordinary course of trade,” including, for a trademark, attaching the trademark to goods. 15 U.S.C. § 1127. In any case, “sporadic or minimal” sales are not sufficient. Allard Enters., 146 F.3d at 359; see also Zazu Designs v. L'Oreal, S.A., 979 F.2d 499, 503 (7th Cir.1992) (“A few bottles sold over the counter ․ and a few more mailed to friends” are not sufficient use.). While a single sale may indicate the first use of a mark, it must be the beginning of “continuous commercial utilization.” Allard, 146 F.3d at 358. Obviously, as § 1052(d) requires, such use must also be “in the United States.” See Person's Co. v. Christman, 900 F.2d 1565, 1568-69 (Fed.Cir.1990) (T-shirt sales in Japan are not “use in United States commerce”).
However, Bestseller need not “meet the technical statutory requirements to register ․ [a mark] to have a basis for objection to another's registration.” Nat'l Cable Television Ass'n v. Am. Cinema Editors, Inc., 937 F.2d 1572, 1578 (Fed.Cir.1991). Section 2(d) requires only “use[ ] in the United States,” and adoption of the mark by use analogous to strict trademark use will therefore suffice. T.A.B. Sys., Inc. v. PacTel Teletrac, 77 F.3d 1372, 1375 (Fed.Cir.1996). An opposer may rely on myriad forms of activity besides sales themselves, including, among others, regular business contacts, after-sales services, advertising of various forms, and marketing. First Niagara Ins. Brokers, Inc. v. First Niagara Fin. Group, 476 F.3d 867, 868-69 (Fed.Cir.2007); Johnny Blastoff, Inc. v. L.A. Rams Football Co., 188 F.3d 427, 434 (7th Cir.1999); Malcolm Nicol, 881 F.2d at 1064. Even marketing of a trademarked product before the product is ready for sale has the potential to defeat a rival's registration. See Old Swiss House, Inc. v. Anheuser-Busch, Inc., 569 F.2d 1130, 1133 (C.C.P.A.1978). Still, desultory marketing such as sending out occasional press releases is not enough. Id. Analogous use must be “of such a nature and extent as to create public identification of the target term with the opposer's product.” T.A.B. Sys., 77 F.3d at 1375.
Bestseller's allegations fall short of showing a sale, whether in the United States or to an American abroad, as the beginning of a continuous commercial exploitation of the Jack & Jones mark in the United States; but they do give fair notice of a claim to analogous use. While Bestseller clearly sells millions of dollars worth of Jack & Jones branded clothing elsewhere in the world, it fails to allege any sales in the United States or to Americans. The closest Bestseller comes is saying this clothing “has been available to U.S. consumers through Bestseller's foreign customers and stores as well as through re-sales on eBay.com.” Am. Compl. ¶ 14. This allegation does not imply any American sales at all, much less continuous commercial sales.
Neg
CP---Advantage
1NC---Data Breaches---APRA
---pass the American Privacy Rights Act.
APRA solves data breaches by increasing liability and minimizing the data companies have access to.
Jean Paul Simon 24, founder of JPS Public Policy Consulting, a consulting firm specialised in media/telecom law regulation and strategy, 06/19/2024, “The American Privacy Rights Act of 2024 (APRA),” https://www.axept.io/blog/apra-american-privacy-rights-act, avr
The U.S. Congress has been trying for several years now to adopt comprehensive federal legislation for privacy protection. In April 2024, a bipartisan and bicameral bill proposal was introduced in the form of a "discussion draft"1. This follows various attempts, including the American Data Privacy and Protection Act (ADPPA)2 of 2022, from which it borrows some elements. After the adoption of laws by states such as California or Illinois, Congress is aiming to take the lead and define a singular national approach that preempts state laws3 and aims to avoid a patchwork of laws. APRA also echoes the GDPR.
Initial reactions seem rather positive4, acknowledging a significant legislative turning point and the rise of data protection. However, it is uncertain whether the law can be adopted before the end of the year given the U.S. political calendar (November elections).
The 4 objectives of the American Privacy Acts
Provide Americans with a fundamental right to digital privacy.
Create a national law regulating how companies can use personal data.
Limit companies' ability to track, anticipate, and manipulate individuals' behaviors for profit without their knowledge and consent.
Establish a uniform national standard for data privacy and security in the United States.
Summary of the bill5
The bill aims to establish consumer data privacy rights on a national level. It would require covered entities to be transparent about how they use consumer data and grant consumers the right to access, correct, delete, and export their data, as well as the ability to opt-out of targeted advertising and data transfers.
It sets data minimization standards, allowing companies to collect and use only data ("covered data") for necessary and limited purposes (15 are defined, e.g., "protecting data security", "defending claims") for a specific product or service requested by the consumer. This minimization is unprecedented in U.S. law, except possibly in the recently adopted Maryland law6, according to the International Association of Privacy Professionals (IAPP)7.
The transfer of sensitive covered data to third parties without obtaining effective consumer consent is prohibited. Data of minors under 17 is treated as sensitive data.
The law would prohibit the use of sensitive data for discriminatory purposes against consumers (extended civil rights protection).
It would grant consumers the right to refuse the use of algorithms for decision-making. The use of "dark patterns" to deceive users is also prohibited. It introduces a three-tier enforcement system: the Federal Trade Commission (FTC), state attorneys general (or their chief consumer protection officers), and consumers could enforce law violations.
It thus establishes strict enforcement mechanisms to hold violators accountable and introduces a private right of action for individuals who may sue involved companies if they are harmed by a data breach.
This right allows for the enforcement of various provisions and the seeking of damages, injunctions, declaratory judgments, and "reasonable" legal and litigation costs.
Court efficiency---Judicial Efficiency Improvement Act---1NC
---pass the Judicial Efficiency Improvement Act:
Solves backlogs by creating a new Circuit of appeals and increasing the number of judges.
Dan Sullivan 23, junior United States senator from Alaska since 2015, 06/08/2023, “SENATORS INTRODUCE BILL TO CREATE NEW TWELFTH CIRCUIT, IMPROVE ACCESS TO JUSTICE,” https://www.sullivan.senate.gov/newsroom/press-releases/-senators-introduce-bill-to-create-new-twelfth-circuit-improve-access-to-justice, avr
WASHINGTON—U.S. Senators Dan Sullivan (R-Alaska), Mike Crapo (R-Idaho), Steve Daines (R-Mont.), Lisa Murkowski (R-Alaska), and Jim Risch (R-Idaho) today introduced the Judicial Efficiency Improvement Act of 2023, a bill that would split the massively overburdened Ninth U.S. Circuit Court of Appeals and create a new Twelfth U.S. Circuit Court of Appeals. In addition to the split, the legislation would codify the Judicial Conference’s most recent recommendations to enhance the effectiveness of the federal judiciary by authorizing 66 new permanent district court judgeships, converting seven temporary district court judgeships into permanent posts, and authorizing two new appellate court judgeships for the Ninth Circuit.
“Non-partisan judicial commissions going back 50 years have determined the Ninth Circuit suffers from ‘serious difficulties with backlog and delay’ due to its immense size and scope,” said Sen. Sullivan. “Those deficiencies have only gotten worse with time and the explosion of growth in the American West, leaving citizens under the Ninth Circuit’s jurisdiction—including all Alaskans—with less-than equal access to justice. As a former Ninth Circuit law clerk, I saw firsthand the court using shortcuts to manage its workload. The solution—splitting the Ninth Circuit—shouldn’t be controversial. We’ve split circuits and created new ones in the past to address the changes in our country’s population. What is controversial is stubbornly maintaining the status quo and undermining millions of Americans’ faith in their own access to justice. It is time for members of Congress to put the politics aside, end the delays and shortcuts, and finally approve these critical new judgeships and a new circuit court.”
“Changes are needed to address case backlogs and other inefficiencies prevalent in the U.S. Court of Appeals for the Ninth Circuit,” said Sen. Crapo. “This legislation provides the necessary first step to understanding those inefficiencies and providing tangible solutions to problems slowing justice for Americans served by the current Ninth Circuit.”
“The people of Montana deserve a justice system that is not onl

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