According to LAW360, VapeLoft, a Georgia-based e-cigarette retailer, filed a lawsuit in federal court asking the court to revoke the “ELF” trademark of VPR, a U.S. e-cigarette company, claiming that VPR should not own the trademark rights.
VPR has alleged that VapeLoft infringed on the Elf trademark by selling “ELFBAR” e-cigarette products similar to VPR’s Elf-branded products, which VPR claims it has used since November 2017 and obtained a federal registration in June 2018 in connection with e-cigarette lighters, e-cigarettes, and smokeless cigarette vaporizers.
VPR filed a trademark infringement and unfair competition claim against VapeLoft under the Lanham Act and its Georgia law, seeking unspecified damages and preventing VapeLoft from further using the Elf brand on its e-cigarette products.
VapeLoft said VPR did not apply for or obtain premarket approval (PMTA) from the U.S. Food and Drug Administration (FDA) as required by the Family Smoking Prevention and Tobacco Control Act and related regulations. vapeLoft said VPR did not create the Elf brand in connection with its e-cigarette products and did not have rights to the mark at the time it applied for registration.
VapeLoft denies any wrongdoing and also says VPR cannot establish that the Elf trademark has priority over those trademarks in VapeLoft.
VapeLoft also emphasized that it had more than $30,000 worth of disposable products in its inventory, which are manufactured by Shenzhen Love Miracle or its licensees and distributed by DemandVape. It said its monthly sales of such products are popular among its customers, with monthly sales of $50,000.
VPR told Law360 that VapeLoft’s defenses and allegations were not new to VPR, so they were brought by DemandVape in Florida state court and have now been dismissed by the court.
VPR said the Florida court has stayed the case pending an injunction appeal.