Friday, December 6, 2013

Levy v. Kosher Overseers Assoc. of America, Inc. case brief

Levy v. Kosher Overseers Assoc. of America, Inc. case brief summary
104 F.3d 38 (1997)

Defendant appealed the judgment of the United States District Court for the Southern District of New York, which, applying collateral estoppel, found that defendant's certification mark was confusingly similar to plaintiffs' mark, in plaintiffs' action under the Lanham Act, 15 U.S.C.S. §§ 1115 et seq., and New York unfair competition law.

Plaintiffs, kosher food producers, alleged that defendant was using a certification mark that was confusingly similar to their registered mark. Sustaining plaintiffs' opposition to registration of defendant's mark, the Trademark Trial and Appeal Board (TTAB) found that defendant's mark was likely to be confused by consumers with plaintiffs' mark. Plaintiffs brought an infringement action when defendant continued to use its mark and received summary judgment based on the asserted collateral estoppel effect of the TTAB's findings.


  • The court noted that, for the TTAB's "likelihood of confusion" determination to have collateral estoppel effect in the infringement action, the TTAB must have considered the marketplace context. 
  • The court found that the TTAB had considered only one aspect of the multi-factor infringement analysis in comparing commercial use of the parties' marks. 
  • As TTAB's "likelihood of confusion" inquiry was insufficient to constitute the requisite infringement inquiry, the issues were not identical. 
  • Application of collateral estoppel was inappropriate.
The court vacated the judgment and remanded, because application of collateral estoppel was improper where the "likelihood of confusion" inquiry in registration proceedings was not sufficiently identical to the multi-factor commercial context inquiry required in an infringement action.

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