Perspective
Jul. 2, 2010
Rejection of Jus Tertii Defense Calls for Reexamination
Defendants accused of trademark infringement should be able to claim the jus tertii defense when the plaintiff's own use has infringed upon third-party rights, argues David Gerber of D. Gerber Law Offices.
Nearly a century ago Justice Oliver Wendell Holmes Jr., posited that a plaintiff whose own use is infringing may not pursue a trademark infringement claim. The plaintiff's dubious conduct is "a matter to which the defendant could refer when the plaintiff sought to exclude him from doing just what the plaintiff had done himself." Ubeda v. Zialcita, 226 U.S. 452, 454 (1913).
This is the defense of...
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