Already, LLC v Nike, Inc.

Broad language to "unconditionally and irrevocably" prohibit suit, claim or demand meets the burden of the voluntary cessation test and therefore ends any actual case or controversy necessary for Article III standing.

In 2009 Respondent filed a complaint for trademark infringement on a shoe design. Petitioner counterclaimed that the registration was not a trademark and sought to cancel the registration under the Lanham Act (15 U.S.C. § 1119), and in the alternative alleged that there was “actual controversy” over whether Petitioner had infringed on Respondent’s trademark. In 2010 Respondent sent Petitioner a covenant obligating itself to refrain from making “any claim(s) or demand(s)” against Petitioner for its continuing use of the shoe design “before or after the effective date of the covenant.” Respondent then filed a Rule 12(b)(1) motion to dismiss all claims, including Petitioner’s counterclaim, for lack of subject matter jurisdiction, due to no case or controversy. The trial court issued the dismissal and the Court of Appeals for the Second Circuit affirmed.

On appeal, Petitioner argued that as long as Respondent held the trademark investors would be apprehensive about investing, that Petitioner would be in constant fear of future suit, and that by
merely being a competitor of the Respondent they had Article III standing.

The Supreme Court relied on its prior “voluntary cessation” decision in Friends of the Earth, Inc v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167 (2000), which held that “a defendant claiming that its voluntary compliance moots a case bears the formidable burden of showing that it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur” and held that Respondent’s covenant met that burden. The Court also held that Petitioner lacked the case or controversy necessary to establish Article III standing because of the “absolutely clear” language of the covenant and that the case was therefore moot.