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Hana Fin., Inc. v. Hana Bank

United States Supreme Court

January 21, 2015

HANA FINANCIAL, INC., Petitioner
v.
HANA BANK, et al

Argued December 3, 2014

This preliminary Lexis version is unedited and subject to revision.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Affirmed.

DECISION: Question whether tacking was available to determine trademark priority held to be issue for jury if jury trial was requested, unless facts warranted summary judgment or judgment as matter of law.

LAWYERS' EDITION HEADNOTES:

[190 L.Ed.2d 801]

TRADEMARKS AND TRADENAMES § 3TRIAL § 165

PRIORITY -- TACKING -- JURY DETERMINATION

Headnote:[1]

Rights in a trademark are determined by the date of the mark's first use in commerce. The party who first uses a mark in commerce is said to have priority over other users. Recognizing that trademark users ought to be permitted to make certain modifications to their marks over time without losing priority, lower courts have provided that, in limited circumstances, a party may clothe a new mark with the priority position of an older mark. This doctrine is called " tacking," and lower courts have found tacking to be available when the original and revised marks are " legal equivalents" in that they create the same, continuing commercial impression. Regarding whether a judge or a jury should determine whether tacking is available in a given case, because the tacking inquiry operates from the perspective of an ordinary purchaser or consumer, a jury should make this determination.

TRADEMARKS AND TRADENAMES § 3TRIAL § 165

TACKING -- LEGAL EQUIVALENTS -- JURY DETERMINATION

Headnote:[2]

The general rule adopted by lower courts has been that two trademarks may be tacked when the original and revised marks are " legal equivalents." This term refers to two marks that create the same, continuing commercial impression so that consumers consider both as the same mark. The commercial impression that a mark conveys must be viewed through the eyes of a consumer. " Commercial impression," like most issues in trademark law, should be determined from the perspective of the ordinary purchaser of these kinds of goods or services. Application of a test that relies upon an ordinary consumer's understanding of the impression that a mark conveys falls comfortably within the ken of a jury. Indeed, the U.S. Supreme Court has long recognized across a variety of doctrinal contexts that, when the relevant question is how an ordinary person or community would make an assessment, the jury is generally the decisionmaker that ought to provide the fact-intensive answer.

TRIAL § 165

TRADEMARK -- TACKING QUESTION -- JUDGE -- JURY

Headnote:[3]

The U.S. Supreme Court does not say that a judge may never determine whether two trademarks may be tacked. If the facts warrant it, a judge may decide a tacking question on a motion for summary judgment or for judgment as a matter of law. Fed.R.Civ.P. 50, 56(a). And if the parties have opted to try their case before a judge, the judge may of course decide a tacking question in his or her factfinding capacity. The Court holds only that, when a jury trial has been requested and when the facts do not ...


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