Can a plaintiff bring a claim for trademark infringement under the Federal(the "Lanham Act") in a Virginia state court?  Up until 2006, no Virginia court had ever considered this issue, which involves the interplay between state and federal law.

In 2006, DGW, representing restaurant owners whose business model and brand were being copied by former employees that started up a competing restaurant, filed a lawsuit in Fairfax County asserting federal trademark infringement, state law trademark infringement, as well as other related claims.  The defendant asserted that the Virginia court lacked jurisdiction to adjudicate the federal trademark claim and filed a motion to dismiss that claim.

Dunlap argued that, under federal law, state and federal courts are presumed to have concurrent jurisdiction over claims based in federal law (meaning that such a claim can be brought in either court), unless the federal law clearly states that the federal jurisdiction is exclusive.  Although the federal law does provide for exclusive jurisdiction in federal copyright claims and federal patent claims, there is no such provision for federal trademark claims.  The court agreed and denied the motion to dismiss, following several other states in concluding that state courts do have concurrent jurisdiction over federal trademark claims.

To date, this is the only published decision of any court in Virginia addressing this issue.  This historic case is cited as a definitive statement of Virginia law in section 32:1 of Professor J. Thomas McCarthy's essential treatise on the law of trademarks and unfair competition.