Southern Snow Manufacturing Co. v. Snow Wizard Holdings, Inc., 829 F. Supp. 2d 437 (E.D. La. 2011)
Plaintiff Southern Snow and Defendant SnoWizard both manufacture and sell ice-shaving machines and flavoring concentrates to vendors of “snowball” flavored ice confections. The dispute involved a number of SnoWizard’s registered and unregistered trademarks for flavors of its concentrates. On a motion for summary judgment for false advertising claims under the Lanham Act, Southern Snow argued that several of these so-called “marks” were actually generic terms used to describe the flavor of the concentrate, such as VANILLA. Southern Snow argued that because these terms were generic and could never been protected, appending the terms with the TM symbol equated to a literally false statement and thus false advertising under section 43(a) of the Lanham Act.
At length, the court discussed the difficulty in determining whether a mark is generic and exactly what assertion is made when a party uses the TM symbol. Ultimately, the court granted SnoWizard’s motion for summary judgment, rejecting Southern Snow’s argument that use of TM symbol with a generic term constitutes a literally false statement. The court also rejected the argument that use of the TM symbol equates to a misleading statement for purposes of false advertising.
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