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Grupo Gigante SA de CV v. Dallo & Co., Inc.

United States Court of Appeals for the Ninth Circuit

391 F.3d 1088 (2004)

Facts

Grupo Gigante SA de CV (GG) (plaintiff) had a chain of grocery stores in Mexico under the name “Gigante.” GG had used this name since 1962 and had registered the trademark “Gigante” in Mexico in 1963. GG expanded to areas on the border with the United States and had over 100 stores by 1991. Dallo & Co., Inc. (Dallo) (defendant) opened a store in San Diego under the name “Gigante Market” in 1991. GG learned of Dallo’s store in 1995, prior to Dallo’s expansion. In 1998, GG unsuccessfully attempted to meet with Dallo and stop Dallo’s use of the mark “Gigante.” Both parties registered “Gigante” in the state of California in 1998. GG then expanded into Los Angeles in 1999. Dallo sent GG a cease and desist letter, and GG responded by suing Dallo. Both parties claimed to have a superior right to the mark. The district court found that GG had a protectable interest in the “Gigante” trademark because the trademark had acquired secondary meaning associated with GG in San Diego. The district court agreed with GG that the test was whether GG had obtained secondary meaning in the area in which the foreign user wished to assert protection. However, under the doctrine of laches, the district court also found that GG could not prevent Dallo from using the mark at its existing stores. GG appealed this decision.

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Holding and Reasoning (Kleinfeld, J.)

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