Fortune Dynamic, Inc. v. Victoria's Secret Stores Brand Management
United States Court of Appeals for the Ninth Circuit
618 F.3d 1025 (2010)
Fortune Dynamic (plaintiff) held the trademark "Delicious" for footwear, while Victoria's Secret (defendant) launched a "Beauty Rush" personal care line and offered a promotional tank top prominently displaying "Delicious" on the chest, mirroring how Victoria's Secret had previously displayed its own trademarks on similar promotional tops. Fortune sued for infringement; Victoria's Secret admitted it never investigated whether "Delicious" was a protected mark but claimed fair use as a descriptive term for its products' qualities, and the district court granted Victoria's Secret summary judgment.
Whether, under the Lanham Act, a descriptive word protected as a trademark may be fairly used by another party if used, in good faith, only to describe the goods or services offered rather than as a mark.