The standing mess gets worse

Trump Plaza of the Palm Beaches Condominium Ass'n, Inc. v. Rosenthal, 2009 WL 1812743 (S.D. Fla.)

I don't know whether to be amused or disgusted. In this trademark case against Rosenthal's use of "Trump Plaza of the Palm Beaches" in advertisements along with the descriptive phrase, "Your Designated Broker," the court engages in extensive analysis of whether Trump Plaza of the Palm Beaches (a Trump-owned condo with a license to use the Trump Plaza name) has standing under the Conte Bros./Phoenix of Broward standing test; very little of its analysis is devoted to answering the question of a nonexclusive licensee's standing, the only question worth asking. As usual, the Conte Bros. test is either trivial, creating only opportunities for error, or misses the point.

The court gets to the answer that the plaintiff has standing--and of course the court may well just be reacting to the parties' arguments, so I'm not saying the judge did anything wrong, just that the effort expended demonstrates how bad "prudential standing" doctrine has gotten. The rot has spread to trademark; I can only hope we'll see some courts rethinking the standing mess.

On the dilution claim, the court focused its attention on the ability of a nonexclusive licensee to bring a federal dilution action, concluding that standing was absent because the TDRA reserves such a claim to the "owner" of a mark, and plaintiff was not the owner of the mark even in its limited territory, both because of nonexclusivity and because of Trump's reserved power to police the plaintiff's use of the mark.