CREAGRI, INC. v. USANA HEALTH SCIENCES, INC.

No. 05-15305.

474 F.3d 626 (2007)

CREAGRI, INC., a California corporation, Plaintiff-counter-claim-defendant-Appellant, v. USANA HEALTH SCIENCES, INC., a Utah corporation, Defendant-counter-claimant-Appellee.

United States Court of Appeals, Ninth Circuit.

Filed January 16, 2007.


Attorney(s) appearing for the Case

Robin M. Pearson (argued) and Antonio Valla, Gillis, Valla & Dalsin, Lafayette, CA, together with William J. Baron and Katheryn C. Ashton, Duane Morris LLP, San Francisco, CA, for the plaintiff-counter-claim-defendant-appellant.

James W. Kinnear (argued), Holme, Roberts & Owen, San Francisco, CA, for the defendant-counter-claimant-appellee.

Before NOONAN, HAWKINS, and THOMAS, Circuit Judges.


MICHAEL DALY HAWKINS, Circuit Judge.

In a contest involving competing products claiming trademark priority, the district court determined, in order to acquire priority, a "use in commerce" means a lawful use—here, a use compliant with federal labeling requirements. We agree.

BACKGROUND

In the spring of 2001, Appellant CreAgri, Inc. ("CreAgri") began selling Olivenol, a dietary supplement containing...

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