Lucky Mark Fix
Recently, two researchers finished up a nine-year study on luck and its role in determining the fate of the most successful companies in the world. Did tycoons such as Bill Gates simply get bigger lucky breaks more often? Did software businesses go under when Microsoft thrived because of unfortunate circumstances, because of unpredictable events outside of their control which derailed their company?
Scoresby never did well while still a student and earned promotions through blunders. While Scoresby was in military school, the clergyman, who was his teacher at the time, found the young man didn't know any history other than a bit about Caesar. The man helped him study and ''by some strangely lucky accident - an accident not likely to happen twice in a century - he was asked no question outside of the narrow limits of his drill.''
Let's review. ''Luck'' is a short story written by Mark Twain in 1886 and published in Harper's Magazine in 1891. The title emphasizes its theme, luck, which is a success or failure by random chance instead of effort. Lord Arthur Scoresby, by luck, manages to graduate from school by only getting test questions covering his limited knowledge, and then he rises through the ranks in a spectacular military career. The highlight of the story is when he achieves victory in a battle during the Crimean War, all because he mixes up his right with his left. Lord Arthur Scoresby's luck is ironic because it's the opposite of what one expects. No one would imagine someone could make enough lucky mistakes to fake an entire military career.
I cannot describe my excitement when I saw this great and famous man. There he sat, the man himself, in person, all covered with medals. I could not take my eyes off him. He seemed to show the true mark of greatness. His fame had no effect on him. The hundreds of eyes watching him, the worship of so many people did not seem to make any difference to him.
If you will believe me, he came through very well on the day of the examination. He got high praise too, while others who knew a thousand times more than he were sharply criticized. By some strange, lucky accident, he was asked no questions but those I made him study. Such an accident does not happen more than once in a hundred years.
Until now, nobody knew it but Scoresby and myself. He has been followed, day by day, year by year, by a strange luck. He has been a shining soldier in all our wars for years. He has filled his whole military life with mistakes. Every one of them brought him another honorary title. Look at his chest, flooded with British and foreign medals. Well, sir, every one of them is the record of some great stupidity or other. They are proof that the best thing that can happen to a man is to be born lucky. I say again, as I did at the dinner, Scoresby's a complete fool.
In the ruling, the court found infringement against the Lucky Brand entities over their sale of garments bearing the unauthorized "Get Lucky" mark. The court further ruled that the infringement constituted unfair competition under federal and New York laws, including violations of New York's General Business Law.
OnMay 14, the U.S. Supreme Court unanimously decided in LuckyBrand Dungarees v. Marcel Fashions Group, No. 18-1086, 590 U.S. ___ (2020), that principles offederal claim preclusion do not prevent a party from asserting a settlementagreement as a defense against trademark infringement merely because it was notraised in an earlier suit between the parties. In so holding, the Court resolved a circuit split on the issue of when(if ever) claim preclusion applies to defenses in a later suit.
Banner Witcoffis ranked as a top trademark firm and a number of our attorneys are recognizedas leading practitioners in trademark law. To learn more about our team ofseasoned attorneys and their capabilities and experience, click here.
Petitioner makes two main arguments why the Court should hold that willful infringement is not necessary for a plaintiff to recover in a trademark infringement suit. First, statutory interpretation and recent legislative history of the Lanham Act indicate that Congress did not intend to include a willful infringement requirement. Second, a willful infringement requirement sets the bar too high for plaintiffs, thereby reducing the ability for federal law to deter potential infringers.
Court Description: MEMORANDUM OPINION #95676: For the foregoing reasons, Defendants' motion for summary judgment on Plaintiffs' trademark infringement and unfair competition claims is denied. The Clerk of the Court is respectfully requested to terminate Docket Entry No. 92. So Ordered. (Signed by Judge Laura Taylor Swain on 2/5/08) (js) 041b061a72