SDNY: Global Brand v Rae Dunn Design (XOXO) – Fair use could not be determined at 12b6 stage

SDNY: For purposes of a MtD, Defendant’s affirmative defenses (e.g. fair use) must be evident from the face of the complaint. Here, while defendant’s own mark prominently appeared alongside plaintiff’s mark on its packaging, whether this was fair use could not be determined at the 12b6 stage.

text of decision in Global Brand v Rae Dunn Design, 23-CV-1644 (DEH) January 9, 2024