Modern building.Modern office building with facade of glass
Representing Businesses and Business Owners Contact Us Now!
Published on:


The Lanham Act does not contain a statute of limitations. When the filing of a trademark infringement lawsuit is delayed for years, the defendants may instead assert laches as an affirmative defense.  Federal courts use the limitations period for analogous state law claims as a standard for the defense of laches. Peter Mavrick is a business litigation lawyer who represents clients in unfair competition and trademark infringement lawsuits.

The laches defense requires a defendant to show 1) a delay in asserting a right or a claim, 2) that the delay was not excusable, and 3) that there was undue prejudice to the party against whom the claim is asserted.” Ares Defense Systems, Inc. v. Karras, 2016 WL 7042957 (M.D. Fla. March 10, 2016) citing AmBrit, Inc. v. Kraft, Inc., 812 F.2d 1531 (11th Cir. 1986). In Florida, Plaintiff’s delay in asserting its trademark infringement claims is assessed against a four-year limitations period, pursuant to Florida Statute § 95.11(3). AmBrit, Inc. v. Kraft, Inc., 812 F.2d 1531 (11th Cir. 1986). Florida Statute § 95.11(3) sets forth a four-year statute of limitations for several causes of action, including actions based on statutory liability, actions for injury to property and is also a “catch-all” limitations period for any action not specifically provided for in Florida Statutes.

A recent case examined this issue. In Ares Defense Systems, Inc. v. Karras, Plaintiff Ares Defense Systems, Inc. (“ADS”) was a firearm manufacturing company that designed, manufactured, and sold a variety of firearms and components under the marks Ares and Ares Defense since 1999.  ADS filed suit alleging trademark infringement against (among others) Defendants Double A and Lycurgan (and their president Dimitrios Karras (“Karras”)), two companies that each claimed use of the mark “Ares Armor” since 2010 or 2011.

Defendants filed a motion to dismiss based on, among other things, laches. Defendants contended that Plaintiff was aware that Defendant Lycurgan publicly began using the Ares Armor mark in April 2010 and the mark was display and publicly accessible on its website since August 19, 2010 (approximately five years prior to the filing of the lawsuit). Defendants further argued that Plaintiff’s Complaint alleged that “upon information and belief” Defendant Karras adopted the subject mark “on or about 2010” and therefore Plaintiff knew of Defendant’s use of the mark at that time.

Plaintiff argued that Defendants were not entitled to dismissal based on laches since they could not show delay or prejudice. Plaintiff also contended that it became aware of Defendants’ use of the mark when one of the corporate defendants filed an intent-to-use trademark application in 2014.  Plaintiff further contended that even assuming that it knew Defendant Karras had adopted the mark “on or about 2010,” it did not delay in taking action because on September 24, 2014 Plaintiff filed a request for extension of time to oppose the Defendant’s trademark application. Plaintiff’s extension request was made within four years of the Defendant’s alleged January 1, 2011 first use of the mark.

The Magistrate Judge ruled that there were a substantial number of factual issues regarding Plaintiff’s and Defendants’ knowledge of use of the Marks at issue that the Court was not prepared to resolve on a motion to dismiss. The more common procedure for litigating a defense of laches is for a Defendant to assert facts supporting the contention as an affirmative defense in its answer to the lawsuit.   After discovery of the facts of the “delay” and whether such delay was “excusable” the defense of laches and the factual record would usually be addressed at a motion for summary judgment, if warranted, or at trial.  The Magistrate Judge recommended denial of a motion to dismiss based on laches without prejudice.  The Magistrate Judge further stated that Defendants may assert laches in their Answers and, if warranted, file a motion for summary judgment on the issue after completion of discovery.

Peter Mavrick practices business litigation in Broward, Miami-Dade, and Palm Beach Counties, Florida. This article does not serve as a substitute for legal advice tailored to a particular situation.  Peter T. Mavrick can be reached at: Website:; Telephone: 954-564-2246; Address: 1620 West Oakland Park Boulevard, Suite 300, Fort Lauderdale, Florida 33311.

Contact Information