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Belmora LLC v. Bayer Consumer Care AG

United States Court of Appeals for the Fourth Circuit
819 F.3d 697 (4th Cir. 2016), cert. denied, ___ U.S. ___, 137 S.Ct. 1202 (2017)


Bayer Consumer Care AG (Bayer) (plaintiff) owned a trademark for “FLANAX” in Mexico. Bayer used the mark beginning in the 1970s. Belmora LLC owned a trademark for “FLANAX” in the United States. Belmora used the mark beginning in 2004. Both parties used their marks to sell pain relievers. Belmora heavily marketed its pain reliever to Mexican Americans, and made statements intimating an association with Bayer’s Flanax such as “Flanax is now made in the U.S.” Bayer petitioned the Trademark Trial and Appeal Board for cancellation of Belmora’s mark. The board granted the petition. Belmora appealed the decision to the district court. Bayer also separately sued Belmora for false association and false advertising under section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a). The cases were consolidated in the United States District Court for the Eastern District of Virginia. The district court reversed the board’s decision and granted Belmora’s motion to dismiss. The district court ruled that an owner of a foreign trademark that has not used the mark in commerce in the U.S. cannot assert priority over another party’s mark that is used in commerce in the U.S. Bayer appealed.

Rule of Law


Holding and Reasoning (Agee, J.)

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