NEILMED PRODCUTS, INC. v. Med-Systems, Inc.

Good Law

472 F. Supp. 2d 1178·81 U.S.P.Q. 2d (BNA) 1598·2007 U.S. Dist. LEXIS 5276

United States District Court, Northern District of CaliforniaJanuary 10, 2007C 06-00964 CWCalifornia1,955 words

Opinion

Wilken, J.

ORDER DENYING DEFENDANT’S MOTION TO DISMISS

Defendant Med-Systems, Inc., moves pursuant to Federal Rule of Civil Procedure 12(b)(1) to dismiss this case for lack of subject matter jurisdiction under the Declaratory Judgment Act, 28 U.S.C. § 2201 or, alternatively, pursuant to the Court’s discretion. Plaintiff NeilMed Products, Inc., opposes the motion. The matter was heard on January 5, 2007. Having considered all of the papers filed by the parties and oral argument, the Court DENIES Defendant’s motion.

BACKGROUND

On July 12, 2004, Plaintiff filed a trademark application, Serial No. 78/449,153, with the United States Patent and Trademark Office (PTO) for the mark “NEILMED’S SINUS RINSE A COMPLETE SALINE NASAL RINSE KIT (stylized)” (Sinus Rinse) for use on “pharmaceutical preparations for the treatment of nasal and sinus ailments.” Pl.’s Opp. Ex. A. On December 27, 2005, Defendant filed a notice of opposition, Opp. No. 91168470, to Plaintiffs trademark application, alleging that the proposed mark is similar or identical to Defendant’s earlier, competing mark “SINUCLEANSE (stylized)” (SinuCIeanse), Registration No. 2,205,705 . Pl.’s Opp. Ex. B ¶ 1-3. Plaintiff brought this case…

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