Belmora LLC v. Bayer Consumer Care AG
United States Court of Appeals for the Fourth Circuit
819 F.3d 697 (2016)
Bayer Consumer Care AG (plaintiff) owned the "FLANAX" trademark in Mexico since the 1970s, while Belmora LLC (defendant) registered and used "FLANAX" in the United States starting in 2004, marketing its pain reliever heavily to Mexican Americans with statements implying a connection to Bayer's product. Bayer successfully petitioned to cancel Belmora's U.S. trademark and separately sued Belmora for false association and false advertising under Lanham Act Section 43(a). The consolidated cases went to a Virginia federal district court, which reversed the trademark cancellation and dismissed Bayer's Section 43(a) claims, reasoning that a foreign trademark owner who never used its mark in U.S. commerce could not assert priority over a mark actually used in the U.S. Bayer appealed.
Whether a false-advertising claim under Section 43(a) of the Lanham Act requires the plaintiff, rather than only the defendant, to have used the mark in United States commerce.