Buzz Bee Toys, Inc. v. Swimways Corp., --- F.Supp.2d ----
(2014), 2014 WL 2006799, No. 14–1948 (D.N.J. May 15, 2014)
Here, the court found likely confusion predicated on the
near identity between the parties’ product configurations, but denied a
preliminary injunction for want of secondary meaning in the design of plaintiff’s
water guns; there just wasn’t real evidence that people recognized the design
as an indicator of source. One oddity:
the court found that intent weighed in plaintiff’s favor in the likely
confusion analysis because of the intentional copying, but didn’t weigh in its
favor in the secondary meaning analysis because intentional copying isn’t
necessarily bad intent, especially in a product design case, in the absence of
intent to pass off. The latter is the
correct rule but courts occasionally slip into the former; it’s just a bit odd
to find both in the same case.
Buzz Bee's Avenger and Swimways' Storm |
Buzz Bee's Kwik Grip and Swimways' Stryker |
As the court commented, “[t]here are small differences
between the products, but the overall similarity of the product lines is
unmistakeable.” (Another tidbit from the
analysis: though the differences in packaging/house marks were much greater
(and indeed the package often obscured significant features of the gun for the
Swimways products), the court disregarded that because the target audience
included children; though there wasn’t evidence of their level of discernment, the
products were cheap and children couldn’t be considered the kind of
sophisticated audience that would be protected from confusion by the
packaging.)
Anyway, without secondary meaning, the likelihood of
confusion was irrelevant. Also, the
court independently found that Buzz Bee hadn’t shown irreparable harm. Buzz Bee argued that infringement was
irreparable injury as a matter of law. eBay precluded this argument, overruling
prior Third Circuit precedent. Buzz Bee
argued that the trademark presumption didn’t fall afoul of eBay because it only extended to one of four factors and was
rebuttable. Nope. Take it away, Salinger: “eBay’s central
lesson is that, unless Congress intended a ‘major departure from the long
tradition of equity practice,’ a court deciding whether to issue an injunction
must not adopt ‘categorical’ or ‘general’ rules or presume that a party has met
an element of the injunction standard.” A possibility
of irreparable harm wasn’t enough to justify the extraordinary remedy of a
preliminary injunction without a showing of likely
irreparable harm.
Here, Buzz Bee failed to show irreparable harm. It made the usual quality
control/reputational risk argument, but the court concluded that it hadn’t “shown
that any consumers blame Buzz Bee for or associate Buzz Bee with Swimways’
product failures, if any.” Buzz Bee
alleged that now was the prime consumer purchase season, but that didn’t seem
unredressable by money damages, and Buzz Bee’s relationship with Target (which
sold the Swimways products) seemed damaged for good regardless. Since Swimways offered its line exclusively
through Target, it wouldn’t affect Buzz Bee’s relations with other retailers;
Buzz Bee failed to provide any evidence that any retailer’s willingness to sell
Buzz Bee products depended on exclusivity of design.
Buzz Bee argued that this copying would lead to other copying,
destroying Buzz Bee’s goodwill. But it didn’t show that this sequence of events
was likely without an injunction, as opposed to possible.
Swimways, for its part, argued that styles vary yearly, and
styles from previous years may be difficult to sell, making it unable to sell its
products in the future if an injunction issued. Buzz Bee pointed out that Swimways
copied Buzz Bee products that had been on sale for many seasons. So defendants’ arguments about harm to them
were “not compelling,” but there was still no likely irreparable harm.
Nor did the public interest favor an injunction, since
although consumers might not distinguish between the two product lines, Buzz
Bee hadn’t shown confusion as to source. The similarity of the products made the case “challenging”
to the court, but ultimately lack of secondary meaning or irreparable harm
precluded a preliminary injunction. Buzz
Bee was free to renew its motion if discovery remedied the deficiencies in its
case.
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