Nominative fair use defense in 2d Cir goes about as well as you'd expect on motion to dismiss

Excelsior College v. Wolff, 2018 WL 3964703, No. 17-CV-0011 (N.D.N.Y. Aug. 16, 2018)Excelsior alleged that Wolff infringed its rights by advertising and selling a test preparation service that uses Excelsior’s registered marks and copyrighted material for a Clinical Performance Nursing Exam required to pass its nursing program.  Wolff, a former student who signed the academic honesty policy, uses and and his html [foolishly] includes “CPNE” and “Excelsior College” as keywords and meta-tags. He used RobsCPNE on social media.  Wolff allegedly requests CPNE test questions and exam feedback from students who take the CPNE exam, then them to students preparing to take the CPNE exam, allegedly violating and causing the violation of the honesty policy.We’re in the Second Circuit, so nominative fair use can’t be used to kick out the case on a motion to dismiss. Strength: registered without requiring a…

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