The court also found that “Georgia Expo does not dispute that its October 2015 brochures included a picture of VersaTop’s coupler product and references to VersaTop’s trademarked product names.” Id. The district court found that VersaTop owns the trademarks PIPE & DRAPE 2.0 and 2.0. The magistrate judge issued Findings and Recommendations, which were adopted in full by the district court. Following discovery, the parties filed cross-motions for summary judgment. In response, Georgia Expo denied any and all infringement. December 21, 2015, VersaTop filed an amended complaint with an additional count for infringement of the ’027 patent, which had issued six days earlier. On These marks have since been federally registered by VersaTop. On October 28, 2015, VersaTop filed a complaint with counts for trademark and copyright violations. The complaint includes pictures of two of the flyers distributed by Georgia Expo: Am. The complaint states that Georgia Expo distributed advertising and brochures that contained these VersaTop trademarks as well as pictures of the VersaTop coupler. VersaTop states that since 2011 it has sold these systems with the trademarks PIPE & DRAPE 2.0™ and 2.0™. 9,211,027 (“the ’027 patent”), and in the district court record is called the VersaTop Support Sys., LLC v. VersaTop’s system for coupling structural components is the subject of U.S. Both parties produce and sell systems of modular rod and pole structures, for assembly to form sectional spaces such as trade show booths and other drape-separated structures, as well as temporary barricades. BACKGROUND VersaTop and Georgia Expo are competitors in the “drape and rod” industry. We reverse the district court’s judgment, and remand for appropriate further proceedings. On the correct law, violation of the Trademark Act was established on the admitted facts. We conclude that the district court erred in law. Summary judgment of noninfringement in favor of Georgia Expo was granted on this ground. The district court held that Georgia Expo’s use of VersaTop’s trademarks in advertising and brochures did not violate the Trademark Act because Georgia Expo had not “affixed” the VersaTop trademarks to goods that were “sold or transported in commerce.” The court held that such “use in commerce” was required for trademark infringement liability, and therefore the relevant statutory provision concerning likelihood of confusion was not applicable. did not infringe VersaTop Support Systems’ patent, copyright, or trademark rights. The United States District Court for the District of Oregon held, on cross-motions for summary judgment, that Georgia Expo, Inc. _ Before NEWMAN, LINN, and DYK, Circuit Judges. NORTH, Hill Kertscher & Wharton LLP, Atlanta, GA, argued for defendant-appellee. _ Decided: Ap_ DAVID PAUL COOPER, Kolisch Hartwell, P.C., Portland, OR, argued for plaintiff-appellant. 3:15-cv-02030-JE, Magistrate Judge John Jelderks. GEORGIA EXPO, INC., Defendant-Appellee _ 2018-1208 _ Appeal from the United States District Court for the District of Oregon in No. United States Court of Appeals for the Federal Circuit _ VERSATOP SUPPORT SYSTEMS, LLC, Plaintiff-Appellant v. 1127, a trademark owner is entitled to summary judgment on a claim of likelihood of confusion where the marks were identical, the goods were related, and the marketing channels overlapped. The district court incorrectly applied the definition of “use in commerce” and concluded that Georgia Expo’s use of the marks was not in commerce so that there was no infringement. The district court held that Georgia Expo did not infringe VersaTop’s patent, copyright, or trademark rights. VersaTop’s system for coupling structural components is the subject of the 027 patent and is called the “‘ball and crown’ coupler.” VersaTop alleged that since 2011 it has sold these systems with the trademarks PIPE & DRAPE 2.0™ and 2.0™ and that Georgia Expo distributed advertising and brochures that contained these VersaTop trademarks as well as pictures of the VersaTop coupler. Both produce and sell systems of modular rod and pole structures, for assembly to form sectional spaces such as trade show booths and other drape-separated structures, as well as temporary barricades. VersaTop and Georgia Expo are competitors in the “drape and rod” industry.
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