In Nike, Inc. v. Wal-Mart Stores, Inc., 138 F. 3d 1437 (Fed. Cir. 1998), Judge Newman noted that “[i]n order to satisfy the constructive notice provision of the marking statute, Nike must have shown that substantially all of the Air Mada Mid shoes being distributed were marked, and that once marking was begun, the marking was substantially consistent and continuous.”
The Federal Circuit recently was presented with the issue of what does “substantially consistent and continuous” mean in the constructive notice context during the oral argument of Japan Cash Machine Co., Ltd. et al. v. MEI, Inc., 2010-1069 (Fed. Cir. Nov. 8, 2010). The panel issued a Rule 36 opinion; so, there is no additional guidance to be garnered from a written opinion. But, the oral argument is interesting as the panel tried to gain insight into what satisfies “substantially consistent and continuous.”
You can listen to the oral argument here: [Listen]. The discussion of marking begins at about the 17:45 minute mark.
You can see the court’s Rule 36 opinion here: [Read].