"Progressive Encroachment" Does Not Justify A Quarter Century Of Delay

The U.S. Court of Appeals for the Ninth Circuit denied a laches defense where the senior user had knowledge of the junior user's activities, acquiesced in the junior user's use and only acted when, after 25 years, the channels of trade of the products of both users merged in the supermarket trade. Tillamook Country Smoker v. Tillamook County Creamery Association, Case No. 04-35843 (9th Cir., Oct. 11, 2006) (Silverman, J.).

The Tillamook County Creamery Association (Tillamook Creamery) has marketed cheeses under its name for nearly 100 years. It registered the word mark "Tillamook" with the U.S. Patent and Trademark Office (USPTO) in 1912 and again in 1950. In 1975, a member of the Tillamook Creamery approached the Creamery's general manager about his desire to start a processed meat company under the name Tillamook Country Smoker (Tillamook Smoker). The general manager of the Tillamook Creamery did not object so long as Tillamook Smoker did not build a cheese factory.