Never say DieHard - that is Sears' position in a case filed in federal court in Chicago against Rockhard Laboratories' use of DieHard for a “sexual enhancement spray” that acts as “a numbing agent for male genitalia.” The Sears legal department took issue with Rockhard's use of DieHard based on Sears' long use of DieHard with car batteries and other products.
Last year Sears asked Rockhard to stop using Diehard with the DieHard spray, and Rockhard agreed and abandoned its pending federal trademark application. However, it continued to distribute and sell the product.
Sears is claiming trademark infringement under likelihood of confusion and dilution theories. Hopefully, the judge won’t die laughing. One comment about the case already online said “assault on battery.” The jokes will no doubt continue.
My take is that Sears may have a credible dilution claim in the form of tarnishment. What do you think?
Sears, Roebuck and Co. et al v. Rockhard Laboratories, LLC et al.
Case Number: 1:2011cv02483
Filed: April 13, 2011
Court: Illinois Northern District Court
Presiding Judge: John F. Grady