9th Cir. Model Jury Instr. (Civil) 15.24

Area—Affirmative Defense (15 U.S.C. § 1115(b)(5))

An owner of a registered trademark may not exclude others who began using [that] [a confusingly similar] trademark in a geographic area, without knowledge of the owner’s prior use of [the] [a similar] trademark elsewhere, and before the owner had [applied for registration of the] [registered the] [published the registered] trademark.

The defendant [name] contends that defendant [name] has the right to use the trademark within the [specify geographic region] area.

The defendant [name] has the burden of proving each of the following by a preponderance of the evidence:

First, the [defendant [name]] [defendant’s assignor] [defendant’s licensor] continuously used the trademark, without interruption, in [geographic region where defendant claims prior use];

Second, the [defendant [name]] [defendant’s assignor] [defendant’s licensor] began using the trademark without knowledge of the plaintiff [name]’s prior use elsewhere; and

Third, the defendant [name] used the trademark before the plaintiff [name] [[applied for registration of the] [registered the]] [published the registered] trademark.