No Trademark Infringement Found Where Actual Use Specimens were Fishy

Go Pro Lo Go

Go Pro Ltd, which makes embroidered clothing for promotional purposes, sued River Graphics, Inc., for trademark infringement for its use of the mark HERE FISHY FISHY on t-shirts for a fly fishing store. Go Pro had been embroidering the phrase on t-shirts since 1997. River Graphics did not use the phrase until 1998, when a fly-fishing store requested the design of a new t-shirt. River Graphics did not claim exclusive rights to the phrase HERE FISHY FISHY and in fact, claimed that Go Pro was casting too wide a net over its rights, noting that the phrase was not trademark use because it was not a source indicator, but instead simply a decorative use.

Notwithstanding Go Pro’s evidence that third parties had come to associate the term with Go Pro, the Judge wasn’t buying that fish story and found that Go Pro’s use was, in fact, merely decorative.

Practice Pointer: As a general rule, a company’s use of a catch-phrase on a t-shirt is likely to be considered merely decorative.

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