OWNING OWN THE POWER

oprahSome of my favorite trademark cases involve “reverse confusion.” Instead of the usual scenario in which a rich and powerful senior trademark user crushes a little start-up for trading on its good name, the essence of a reverse confusion case is that a rich and powerful entity has flooded the market with much more promiscuous use of a mark than a smaller, but senior, user of the mark had ever mustered, with the result that the public comes to  believe wrongly that the poor senior user is the infringer. That is the gravamen of the complaint that Own Your Power Communications, a “motivational services business,” brought against Oprah Winfrey and her media empire for the “Own Your Power!” issue of O Magazine pictured here, together with associated online content and events. In a ruling handed down by the Second Circuit last week, Own Your Power won the first round, surviving Oprah’s motion to dismiss the case which was based on the ground that her use of the mark “Own Your Power” was protected under the doctrine of trademark fair use.

 

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