Water Pik, Inc. v. Med-Systems, Inc. No. 12-1065 (10th
Cir. Aug. 29, 2013)
Highlights: when SinuCleanse, SinuSense, and NeilMed neti
pot packages were shown to survey respondents, 29 of the 198 total respondents,
or 14.6%, expressed confusion between SinuCleanse and SinuSense. But 30
respondents (15.2%) expressed confusion between SinuCleanse and the supposed
control, NeilMed—producing a net negative
confusion number. Plaintiff did better
with the other product tested, with net 6.5% confusion, but that wasn’t enough to
create a factual issue on likely confusion.
(There were also flaws with the survey construction, but frankly, who
cares?)
The court accepted a theory of “unconscious” confusion,
whatever that means (apparently it means association, though association alone
isn’t actionable), despite the relevant consumer’s testimony that she made a
typographical error rather than being actually confused. Still, this was anecdotal evidence and not
sufficient to show likely confusion.
Also, the court rejected the district court’s analysis of
intent, which was that intent favored the firstcomer because the secondcomer
knew about SinuCleanse before adopting SinuSense as a trademark, and only
developed its own product after an offer to buy SinuCleanse was rejected. Instead of focusing on intent to copy the product, the proper inquiry is whether
the secondcomer intended to deceive consumers about source—and there was no
evidence of that, even though intent to copy a mark may justify an inference of confusion in the 10th
Circuit. Knowledge plus intent to
compete is not intent to mislead.
No comments:
Post a Comment