That's swell: court rules that NY doesn't impose "use in commerce" limit on unfair competition

Can’t Live Without It, LLC v. ETS Express, Inc., — F.Supp.3d —-, 2018 WL 401778, No. 17-cv-3506 (S.D.N.Y. Jan. 15, 2018)Plaintiff S’well sued ETS for trademark infringement and related claims based on its sales of the Force and Swig Bottles, which have the exact same shape as plaintiff’s S’well and S’ip Bottles, respectively. The court denied ETS’s motion for summary judgment, among other things holding that §349 and §350 don’t incorporate whatever is left of the Lanham Act’s “use in commerce” requirement, which meant that ETS’s partial motion for summary judgment as to its use of the S’well name was only partly granted.S’well has a registration for the shape of its S’well bottle, on the Principal Register as of 2017. “The S’well Bottle has been very successful, obtaining substantial amounts of free, unsolicited media coverage, selling millions of bottles and an…

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