On October 12, 2020, Sarah Brooks and Alicia Sharon published “Identical Marks, Identical Types of Products: Not Enough to Presume Confusion” in the Daily Journal. The following is an excerpt:
The 9th U.S. Circuit Court of Appeals recently affirmed the district court’s grant of summary judgment in favor of the defendant, Farmacy Beauty, LLC, in a trademark counterfeiting dispute between two skin care companies that both use the mark “EYE DEW” on eye cream products. Arcona Inc. v. Farmacy Beauty, 2020 DJDAR 10632 (Oct. 1, 2020). In 2015, Arcona, Inc. registered the trademark “EYE DEW” for eye cream it had been selling for over a decade. Farmacy developed an eye cream named “EYE DEW” and began selling the cream in 2015. Arcona then sued Farmacy in 2017, alleging counterfeiting, among other claims, based on Farmacy’s use of the trademarked term “EYE DEW” on its eye cream product.