Action Ink, Inc. v. Anheuser-Busch, Inc.

Trademark ownership is established by use, not by registration and aggressive policing of the mark alone.

Opinion (Vance): Action Ink, Inc. ("Action") is a sports marketing firm that developed a marketing contest entitled "The Ultimate Fan." Action registered the mark "THE ULTIMATE FAN" in 1985 and employed the mark in marketing contests with sports teams in the late 1980s. In 1995 Action renewed the mark. Since renewing the mark, Action has sent many cease and desist letters (over 60 between 2006 and 2012). Action has also entered into many licensing agreements to allow use of the mark. Anheuser-Busch, Inc. ("Anheuser") is a major beer producer. In 2009, Action learned that Anheuser had entered into a promotional agreement with the NFL that involved an "Ultimate Fan Sweepstakes." Action filed suit in 2012 alleging trademark infringement. Anheuser filed a motion for summary judgment, arguing that Action had abandoned the mark. The court observed that, although Action had aggressively policed its mark, Action had not actually use the mark itself ince 1995 and had shown no intent to resume using the mark. The court therefore concluded that Action had abandoned the mark and GRANTED Anheuser's motion for summary judgment.