On March 6, Baker Botts secured a trademark victory in the United States Court of Appeals for the Fifth Circuit in favor of client Bankrate, Inc. in the matter of Neutron Depot, LLC v. Bankrate, Inc. The three-judge panel denied a petition for rehearing, leaving in place its unanimous affirmance of the Texas district court's dismissal of Neutron Depot's case.
Neutron Depot had been granted a license to use the trademarked term "insurance depot" by the mark registrant CSi Agency Services. CSi's president and owner was also Neutron Depot's manager. From 2010 to 2014, a division of Bankrate, Inc. that generated insurance leads had used "insurance depot" as one of millions of keywords in online advertisements to drive traffic to websites. In 2014, Neutron Depot sued Bankrate under various sections of the Lanham Act for infringing the mark. During litigation, in December 2016, CSi assigned the mark to Neutron Depot. The claims were ultimately dismissed, and Neutron Depot appealed.
After oral argument by Baker Botts partner Cheryl Cauley in January 2020, the Fifth Circuit affirmed the dismissal with prejudice of Neutron Depot's Lanham Act Section 32(1) and 43(c) claims for trademark infringement and dilution, finding that Neutron Depot lacked statutory standing to sue, because it was not the owner or assignee at the time that it filed suit, and the later assignment did not assign past claims. The Fifth Circuit also affirmed the district court's grant of summary judgment that Neutron Depot was not entitled to any damages under the remaining Lanham Act Section 43(a) claim for unfair competition, finding that there was no evidence creating a jury question as to whether Bankrate had willfully infringed the mark.
The Baker Botts team included partner Cheryl Cauley (Palo Alto) and special counsel Jennifer Maybee (San Francisco).
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