Petitioner's motion for summary judgment is supported by an affidavit of its president, copies of pages of a deposition taken in connection with the civil litigation, a copy of the consent judgment, and discovery responses. It is petitioner's position that, as a result of the consent judgment entered into in resolution of the civil litigation brought by respondent against petitioner and others, there is no genuine issue with respect to petitioner's prior use of the mark KONG in connection with rubber dog toys, and that judgment as a matter of law should be entered in petitioner's favor.
Vo-toys #49852 Large 2knot Rope Dog Bone by VO-TOYS INC
About Vo-Toys, Inc.
Vo-Toys, Inc. is nearing the beginning of its sixth decade in the companion animal pet products business. They are world renowned for creating the most complete and finest line of pet toys and accessories. The focus of the company is to provide the highest quality and most unique assortment of products in the categories in which they are a core provider. These include cat and catnip toys, vinyl and latex dog toys, rubber dog toys, plush and fleece dog toys, pet apparel and pet travel items, grooming tools, rawhide dog chews and feeding bowls. No company in the United States can rival their depth and breadth, competitive price points and styling.
Vo-toys #49850 Sm Dog Chew Bone/rope
Jeff Bressler, EVP America’s VetDogs® said, “We are pleased to partner with Vo-Toys and will use our resources to support and engage the consumer including social media to ensure that the VetDogs® experience is a dynamic and successful one for retailers and consumers.”
Vo-toys #49852 Large 2knot Rope Dog Bone
The TTAB awarded VO-Toys priority from 1981, the start of a period of several years when both VO-Toys and Bounce simultaneously marketed dog toys under the KONG mark. Granting VO-Toys a 1981 priority date would have been proper only if the TTAB had found that VO-Toys used the KONG mark in good faith prior to Bounce's abandonment. That is because simultaneous use of a mark may cause public confusion and unfair exploitation of another's good will, the very evils the trademark laws are designed to protect against. See James Burrough Ltd. v. Sign of the Beefeater, Inc., , 276, 192 USPQ 555, 563 (7th Cir.1976) (Markey, C.J.) (sitting by designation) (Trademark laws exist "to protect the consuming public from confusion, concomitantly protecting the trademark owner's right to a non-confused public."); see also United Drug Co. v. Theodore Rectanus Co., , 98 (1918) (trademarks "facilitat[e] the protection of one's good will"). Vo-Toys, Inc., a New York corporation, has petitioned to cancel the registration held by Bounce, Inc., a Colorado corporation, of the mark KONG for dog toys. [FN1] In its amended complaint, petitioner asserts that it manufactures, distributes and sells a line of pet products including toys for dogs and cats; that, although respondent sold a dog toy long before petitioner, respondent long ago ceased using the mark KONG in connection with its goods with the intention to abandon that mark; that petitioner subsequently adopted the mark before respondent recommenced its use of that mark; that in 1985 respondent filed a civil suit against petitioner and others in the United States District Court for the District of Colorado in which in alleged inter alia trademark infringement of its Registration No. 1,145,509 (not the registration herein sought to be cancelled); that, in a consent judgment, respondent's complaint was dismissed with prejudice, its trademark was held abandoned and its pleaded Registration No. 1,145,509 was ordered cancelled; and that respondent's mark used in connection with its goods so resembles petitioner's mark as to be likely to cause confusion.