The equitable doctrine of laches derives from “the maxim that those who sleep on their rights, lose them.” Chattanoga Mfg., Inc. v. Nike, Inc., 301 F.3d 789, 792 (7th Cir. 2002); cf. Danjaq LLC v. Sony Corp., 263 F.3d 942, 959 (9th Cir. 2001) (“laches typically does not bar prospective injunctive relief" but “the rule is not . . . an absolute one”). The doctrine requires the plaintiff must (1) know of the infringing use of the service mark by the defendant, (2) exercise an inexcusable delay in bringing the lawsuit and (3) the Defendant must be unduly prejudiced as a result. Id. at 792–93; see also E-Sys., Inc. v. Monitek, Inc., 720 F.2d 604, 607 (9th Cir. 1983) (“For laches to constitute a defense, the passage of time must be accompanied by circumstances which estop plaintiff from obtaining injunctive relief.”); Tillamook Country Smoker, Inc. v. Tillamook Cty. Creamery Ass'n, 465 F.3d 1102, 1108 (9th Cir. 2006) (laches runs “from the time the plaintiff knew or should have known about its potential cause of action”). 

A plaintiff could “‘plead itself out of court” by setting forth everything necessary to satisfy the affirmative defense. United States v. Lewis, 411 F.3d 838, 842 (7th Cir. 2005).

Because the Lanham Act does not specify a statute of limitations, federal courts rely on “analogous state statute of limitations to determine whether a presumption of laches should apply.” Hot Wax, Inc. v. Turtle Wax, Inc., 191 F.3d 813, 821 (7th Cir. 1999); Belmora LLC v. Bayer Consumer Care AG, 987 F.3d 284 (4th Cir. 2021) (observing that using state statutes of limitations to bar suit can be “unsatisfactory vehicles for the enforcement of federal law”). For example, courts in the Seventh Circuit have applied the three-year statute of limitations found in the Illinois Uniform Deceptive Trade Practices Act ("IDPTA") to trademark infringement. Chattanoga, 301 F.3d at 793–94.

In a recent example, the complaint in Walgreen Co. v. Walgreen Health Solutions LLC, No. 1:23-cv-17067 (N.D. Ill. Sept. 24, 2024) indicated that attempts to settle matters out of court had been initiated “shortly after” the plaintiffs learned of the alleged infringement. But, in ruling on a motion to dismiss, the district court found that when exactly the plaintiff actually knew of the allegedly infringing use—or if a delay was inexcusable—was unclear and plausibly within the relevant statute of limitations. Thus, the district court held that the complaint did not fail on this ground.