NIKE, INC. v. ALREADY, LLC

Docket No. 11-314-cv.

663 F.3d 89 (2011)

NIKE, INC., Plaintiff-Counter-Defendant-Appellee, v. ALREADY, LLC d/b/a Yums, Defendant-Counter-Claimant-Appellant.

United States Court of Appeals, Second Circuit.

Decided: November 10, 2011.


Attorney(s) appearing for the Case

Erik S. Maurer , Banner & Witcoff, Chicago, IL ( Christopher J. Renk , Audra C. Eidem Heinze , on the brief), for Plaintiff-Counter-Defendant-Appellee.

Keith E. Sharkin , Dickstein Shapiro LLP, New York, NY, on the brief, for Plaintiff-Counter-Defendant-Appellee.

James W. Dabney , Fried, Frank, Harris, Shriver & Jacobson LLP, New York, N.Y. ( Victoria J.B. Doyle , Randy C. Eisensmith , Elizabeth P. Kozlowski , on the brief), for Defendant-Counter-Claimant-Appellant.

Before: LEVAL, LIVINGSTON and LOHIER, Circuit Judges.


LOHIER, Circuit Judge:

This appeal requires us to decide whether a trademark registrant's delivery of a covenant not to sue, and voluntary dismissal of its trademark claims, divests a federal court of subject matter jurisdiction over a defendant's counterclaims for a declaratory judgment and cancellation of the trademark's registration. After considering the breadth of the plaintiff's covenant not to sue and the improbability of future infringement, the United States...

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