Kelly Services, Inc. v. Creative Harbor, L.L.C.

by
In 2013, Jurgensen allegedly developed an idea for a mobile application to connect employers with prospective employees, called “WorkWire.” He formed Creative Harbor; an attorney allegedly advised that the WorkWIre trademark was available. Meanwhile, Kelly Services, a staffing company, allegedly developed its own employment-based iPad application, called “WorkWire.” Kelly allegedly completed the application on February 4, and submitted it to Apple for approval. On February 19, Creative filed trademark applications at 6:28 p.m. and 7:56 p.m. (EST). The same day, at 8:11 p.m. EST, Kelly’s iPad application became available on the Apple Store. A customer first downloaded that application on February 20. Creative sent Kelly a cease and desist letter. Kelly filed suit. When the Patent and Trademark Office published the Applications, Kelly filed opposition and notified the Trademark Trial and Appeal Board (TTAB) of the pending action. The TTAB stayed proceedings. The district court held that Creative had to use the Mark in commerce before its priority rights would vest and voided the Applications in their entirety. The Sixth Circuit affirmed that Creative lacked bona fide intent as to some, but not all of the goods and services listed in the Applications, (15 U.S.C. 1051(b)), but held that the district court erroneously voided the Applications in their entirety, and remanded for determination of which goods and services were improperly included in the Applications, and excision of improper items. View "Kelly Services, Inc. v. Creative Harbor, L.L.C." on Justia Law