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Counsel Concerns
Advice-of-Counsel Affirmative Counterclaim Defense to Remain in Case Brought over Use of “Twilight” Marks
The U.S. District Court for the Southern District of New York denied motions to strike and for summary judgment regarding legal advice a declaratory suit plaintiff had received regarding its use of the marks “Twilight Woods” and “Twilight Crush” on personal care products. Bath & Body Works Brand Management Inc. (BBW) v. Summit Entertainment LLC, 11 Civ. 1594. Summit, which produces the Twilight movies, filed several trademark-infringement related counterclaims and fought BBW's bid to rely on advice of BBW's trademark counsel as an affirmative defense to willful infringement.
District Judge George B. Daniels first observed “there is no explicit rule that advice of counsel is an affirmative defense that must be pled in one's answer pursuant to Fed. R. Civ. P. 8(c) in a trademark case.” But, “[e]ven if this Court were to grant Summit's requested relief, and technically strike BBW's assertion of advice of counsel as a tardy affirmative defense, it would have no impact on BBW's ability to use the information procured during discovery regarding the advice it received from counsel as evidence of good faith,” Judge Daniels noted.
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