Darryl Agler, a seller of custom-made guitars, sued defendant Westheimer for its use of the Stratotone trademark, which was registered in Agler's name. A court ruled in Agler's favor and granted summary judgment.
In 2007, Agler began selling custom-made guitars bearing the Stratotone trademark — a popular model of guitars originally sold by Harmony Guitar Co. from the 1950s to the mid-1960s, when it discontinued sale of the guitars and use of the Stratotone mark.
Agler filed an application with the U.S. Patent and Trademark Office (USPTO) for the right to use the Stratotone mark in 2006 and successfully defended the application against an objection. Chicago-based musical instrument manufacturer Westheimer Corp. then made multiple efforts to assert its own right to use the Stratotone mark based upon its supposed acquisition of the assets of Harmony Guitar Co. — all of which were denied by the USPTO. When Westheimer proceeded to sell Stratotone guitars despite having no claim to the trademark, Agler sued for infringement and unfair competition and moved for summary judgment. On Oct. 28, 2015, U.S. Judge Jon DeGuilio ruled in Agler’s favor, citing abandonment of the trademark by Westheimer's predecessors-in-interest and the superior rights granted to Agler following his 2006 intent-to-use application.
