S.C. Johnson & Son, Inc. v. Nutraceutical Corp.

Dist. Ct. erred in granting plaintiff’s motion for permanent injunction in trademark infringement action alleging that defendant’s sale of BUG OFF bug repellant and related products infringed on plaintiff’s trademark, where basis for said ruling was Dist. Ct.’s finding that plaintiff had failed to prove continuous use of BUG OFF after 2012, and where plaintiff had only raised defendant’s lack of post-2012 use in post-trial briefing. Ct. further found that plaintiff had actually conceded in its pre-trial documents that defendant’s post-2012 use of trademark was immaterial, and that plaintiff expressly stated that issues in case were limited to defendant’s alleged pre-1998 use of trademark, at time when defendant claimed that it had used said trademark prior to plaintiff’s registration of said trademark. Moreover, Dist. Ct. did not clearly err in finding that defendant had maintained continuous use of trademark prior to 2012 through its advertisement and sales of BUG OFF repellant on its website and in third-party catalogues, so as to preclude issuance of permanent injunction in plaintiff’s favor.