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LENS.COM, INC. v. 1-800 CONTACTS, INC.

No. 2011-1258.

686 F.3d 1376 (2012)

LENS.COM, INC., Appellant, v. 1-800 CONTACTS, INC., Appellee.

United States Court of Appeals, Federal Circuit.

August 3, 2012.

Attorney(s) appearing for the Case

Anthony J. De Gidio , Attorney at Law, of Maumee, Ohio, argued for appellant.

Mark A. Miller , Holland & Hart, LLP, of Salt Lake City, Utah, argued for appellee.

Before NEWMAN, LINN, and MOORE, Circuit Judges.

LINN, Circuit Judge.

Lens.com, Inc. ("Lens.com") appeals a decision of the Trademark Trial and Appeal Board ("Board") granting 1-800 Contacts, Inc.'s ("1-800 Contacts") motion for summary judgment and ordering the cancellation of Lens.com's registration for the mark LENS. Because the Board applied the correct test for determining "use in commerce" of a mark for software, and because there is no genuine issue of material...

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