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WarnerVision Entertainment Inc. v. Empire of Carolina, Inc.

United States Court of Appeals for the Second Circuit
101 F.3d 259 (2d Cir. 1996)


In 1994, Thomas Lowe Ventures, Inc. (TLV) filed an intent-to-use (ITU) application for the mark Real Wheels to be used in connection with its toy vehicles at a later date. In the same period, WarnerVision Entertainment Inc. (WarnerVision) (plaintiff) began using the mark Real Wheels in association with its automobile-focused home videos and miniature vehicle models. Another company, Buddy L, began using Real Wheels for its toy vehicles around the same time. WarnerVision filed for trademark registration of the Real Wheels mark in 1995, three days before Buddy L filed its registration. WarnerVision’s registration was granted, and Buddy L attempted to obtain a license from TLV on the basis of the ITU application, which could be completed by using the mark in commerce. Shortly afterward, Buddy L went bankrupt and sold all of its assets to Empire of Carolina, Inc. (Empire) (defendant). Empire then purchased all of TLV’s interests involving the Real Wheels mark, including the ITU application. WarnerVision brought a suit to enjoin Empire from completing the ITU registration and achieving seniority based on the ITU application date. Finding that WarnerVision had established an earlier bona-fide commercial use, the district court granted an injunction against Empire. Empire appealed.

Rule of Law


Holding and Reasoning (Van Graafeiland, J.)

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