(CN) – A shoe company’s claim that Victoria’s Secret infringed on its “Delicious” trademark by putting the logo on hot pink tank tops it gave away during a marketing campaign should be heard by a jury, the 9th Circuit ruled.
Fortune Dynamic, owner of the Delicious trademark, sued the lingerie leviathan after it learned that the company was selling or giving away tank tops with the word “Delicious” scrawled across the chest as part of a marketing package to promote its new Beauty Rush line. The tanks featured the word “Delicious” with a capital “D,” in silver type, across the chest. On the back, in smaller lettering, was the word “yum,” and the phrase “beauty rush” was written in the back collar.
Fortune makes Delicious footwear and has trademarked the term.
A federal judge ruled for Victoria’s Secret after excluding all of Fortune’s evidence and concluding that customers were unlikely to be confused about who made the products.
On appeal, a three-judge panel in Pasadena decided that the issue of infringement was for a jury to decide.
“We are far from certain that consumers were likely to be confused as to the source of Victoria’s Secret’s pink tank top, but we are confident that the question is close enough that it should be answered as a matter of fact by a jury, not as a matter of law by a court,” Judge Jay Bybee wrote.