Intellectual Property Law

Chapter 6 Case Study Answers

Case Study: Fit Forever wants to use the mark CARDIO KWIK for fitness classes but
has discovered that Jazzercise Inc. had a registration for CARDIO QUICK for fitness
services (although that registration was canceled because no affidavit of use was filed for
the mark). Additionally, Fit Forever would like to use the mark FLEET FEET for fitness
classes but is aware that there is a registration for FLEET FEET for athletic clothing,
sports bags, and retail store services.

Activities: Discuss whether Fit Forever can use the CARDIO KWIK and FLEET FEET
marks.

Fit Forever must investigate whether Jazzercise continues to use CARDIO
QUICK. The cancellation of the registration due to Jazzercise’s failure to file
a Section 8 affidavit of use is only a cancellation of the registration, not of the
right to use the mark. Thus, Fit Forever must investigate whether the mark
is still in use. If not, it may use (and should apply for) CARDIO KWIK.
If Fit Forever uses FLEET FEET for fitness classes, such would likely
infringe the existing registration for FLEET FEET used for athletic clothing,
sports bags, and retail store services. In a likelihood of confusion analysis, the
two most important considerations are the similarities between the marks
and the similarities between the goods and services. In this case, the marks
are identical and the goods/services are highly related. Moreover, the
goods/services would likely be offered to the same types of purchasers in the
same channels of trade (retail services offered by the same methods of
advertising and marketing). Thus, using the Du Pont factors, Fit Forever’s
use of FLEET FEET is highly likely to cause confusion with the mark
FLEET FEET currently in existence.