Tokidoki, LLC v. Fortune Dynamic, Inc.
Opinion
Opinion
ORDER WITHDRAWING MEMORANDUM AND DENYING PETITION FOR PANEL REHEARING AND REHEARING EN BANC
The memorandum filed May 25, 2011, is WITHDRAWN. A new memorandum is filed concurrently with this order.
The panel has voted to deny the petition for panel rehearing and rehearing en banc.
The full court has been advised of the petition for rehearing en banc and no judge has requested a vote on whether to rehear the matter en banc. Fed. R.App. P. 85.
The petition for panel rehearing and the petition for rehearing en banc filed June 8, 2011, are DENIED.
No further petitions for rehearing will be entertained.
MEMORANDUM
Tokidoki appeals an adverse judgment on its trademark infringement and unfair competition claims. Fortune Dynamic, Inc. appeals the denial of its motion for attorney’s fees. We affirm in part, vacate in part and remand.
1. The district court properly granted Fortune’s counterclaim for cancellation of Tokidoki’s trademark registration under 15 U.S.C. § 1064 . The court did not apply an erroneous legal standard because, even though the court relied on the negligence standard articulated in Medinol Ltd. v. Neuro Vasx, Inc., 67 U.S.P.Q.2d (BNA) 1205 , 1209 (T.T.A.B.2008),…