## Facts

- Marilyn Miglin Model Makeup, Inc. (Miglin) created and sold a perfume under the federally registered trademark **PHEROMONE**.
- Miglin contended that its PHEROMONE perfume did **not** actually contain pheromones.
- Jovan, Inc. (Jovan) introduced a competing fragrance, **ANDRON**, and used the phrase **“pheromone-based”** in connection with ANDRON, representing that the product was tied to pheromones.
- Miglin sued Jovan for trademark infringement and related claims based on Jovan’s use of “pheromone-based.”
- The district court entered **summary judgment for Jovan on all counts of Miglin’s complaint**.
- Jovan also asserted a **counterclaim** seeking (1) a **declaratory judgment** that Miglin had no protectable rights in the name PHEROMONE and (2) **cancellation** of Miglin’s federal registration.
- The reported decision addresses Jovan’s request for summary judgment on that counterclaim.

## Issues

1. Whether Miglin had a protectable trademark interest in **PHEROMONE** for perfume given the term’s meaning and Miglin’s contention that its perfume contained no pheromones.
2. Whether Jovan was entitled to declaratory relief and **cancellation** of Miglin’s federal registration for **PHEROMONE**.

## Decision

- The court **granted summary judgment for Jovan** on its counterclaim.
- The court concluded that Miglin did **not** have a protectable interest in **PHEROMONE** as used for perfume under the circumstances presented.
- The court ordered **cancellation** of Miglin’s federal trademark registration for **PHEROMONE**.

## Legal Principles

- Trademark protection depends on whether a designation is legally protectable as a source identifier for the goods at issue; a party may seek a declaratory judgment to resolve that entitlement when threatened by infringement claims.
- A designation that materially misdescribes a product’s qualities or ingredients and is likely to mislead consumers may be denied trademark protection, and an existing registration may be subject to cancellation.
- Cancellation is an available remedy where the registrant cannot claim a valid, enforceable right in the registered matter.
- On summary judgment, the nonmovant must identify evidence creating a genuine dispute of material fact; otherwise, judgment may be entered as a matter of law.

## Conclusion

In *Marilyn Miglin Model Makeup, Inc. v. Jovan, Inc.*, the court—after already disposing of Miglin’s infringement suit on summary judgment—granted summary judgment for Jovan on its counterclaim, determined that Miglin lacked a protectable trademark interest in PHEROMONE for perfume under the case’s facts, and cancelled Miglin’s federal registration.


Marilyn Miglin Model Makeup, Inc. v. Jovan, Inc., 224 U.S.P.Q. 178 (1984)