E.T. Browne Drug Co. v. Cococare Products

This case involves a dispute between two manufacturers of personal care and beauty products that contain cocoa butter. E.T. Browne Drug Co., Inc. (“Browne”) claims that it has a protected trademark interest under the Lanham Act, 15 U.S.C. § 1051 et seq., in the term “Cocoa Butter Formula,” which features prominently on its products. Cococare Products, Inc. (“Cococare”) disputes the validity of this asserted trademark. The District Court entered summary judgment in Cococare’s favor after concluding that the term is generic and thus may not receive protection from the trademark laws. We agree that Browne has not demonstrated that “Cocoa Butter Formula” is a protectable trademark, but reach that conclusion by a different path. We believe that a genuine issue of material fact exists as to whether “Cocoa Butter Formula” is generic. But even assuming it is descriptive, this term must have a secondary meaning to be protectable. Because Browne failed to identify sufficient evidence to create a genuine issue of material fact on that point, we affirm the grant of summary judgment in favor of Cococare. We remand, however, to allow the District Court to enter an appropriate order under 15 U.S.C. § 1119.

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