Arthrosurface sells surgical devices for orthopedic procedures under the registered mark STAY ACTIVE. Arthrosurface says that STA Active’s use of a virtually identical mark, STĀ ACTIVE, for the sale of nonsurgical apparati to treat tendinitis is an infringement of Arthrosurface’s federal and common law rights. Arthrosurface further says that the infringement is willful, given that STA Active’s attempt to register its mark was denied on the grounds that the two marks were confusingly similar. Arthrosurface further notes that STA Active sought to cancel Arthrosurface’s registration, but after two of the three counts were dismissed with prejudice at summary judgment, STA Active dismissed its third count with prejudice. In addition to trademark infringement, Arthrosurface asserts claims for false designation of origin, unfair competition, and violation of c. 93A.
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