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ELECTRO SOURCE v. BRANDESS-KALT-AETNA GROUP, INC.

Nos. 04-55844, 04-55909, 04-56648.

458 F.3d 931 (2006)

ELECTRO SOURCE, LLC, a California limited liability company, Plaintiff-counter-defendant-Appellant, v. BRANDESS-KALT-AETNA GROUP, INC., an Illinois corporation, Defendant-Appellee, Pelican Products, Inc., a California corporation, Defendant-counter-claimant-Appellee. Electro Source, LLC, a California limited liability company, Plaintiff-counter-defendant-Appellee, v. Brandess-Kalt-Aetna Group, Inc., an Illinois corporation, Defendant-Appellant, Pelican Products, Inc., a California corporation, Defendant-counter-claimant-Appellant. Electro Source, LLC, a California limited liability company, Plaintiff-counter-defendant-Appellee, v. Brandess-Kalt-Aetna Group, Inc., an Illinois corporation, Defendant-Appellant, Pelican Products, Inc., a California corporation, Defendant-counter-claimant-Appellant.

United States Court of Appeals, Ninth Circuit.

Filed August 14, 2006.

Attorney(s) appearing for the Case

Larry C. Russ and Clark D. Gross, Russ, August & Kabat, Los Angeles, CA, for Electro Source, LLC.

Gregory B. Wood, Fulbright & Jaworski, LLP, Los Angeles, CA, for Brandess-Kalt-Aetna Group, Inc. and Pelican Products, Inc.

Before SIDNEY R. THOMAS, M. MARGARET McKEOWN, and MARSHA S. BERZON, Circuit Judges.

McKEOWN, Circuit Judge.

Is a summary judgment determination of abandonment appropriate when the record supports an inference that the trademark holder — a small, troubled business — continued to transport and sell trademarked goods in the ordinary course of trade as part of a good faith effort to deplete inventory? The answer is no, because the trademark law requires both discontinuance of all bona fide trademark use in the ordinary course of trade and...

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