allegations of "use on a website" don't plausibly allege TM confusion

Blue Water Innovations, LLC v. Fettig, No. 18-60671-Civ-Scola, 2019 WL 1904589 (S.D. Fla. Mar. 8, 2019)

Quick reminder that the Eleventh Circuit hasn’t formally recognized initial interest confusion.  That said, at least in a complaint with fewer problems, simply alleging “consumer confusion” might have been enough for some courts.

Blue Water makes a fat reducing device; it has related patents and a trademark registration for Ultraslim, for use on fat reduction and skin rejuvenation devices. Blue Water alleged that defendants stole its patented technology to sell “knockoff” fat reducing devices and that they were improperly using Ultraslim on their website “in a manner that falsely associates the Fettig and Vevazz device with those of Blue Water.”

Patent infringement: failed to state a claim because the complaint didn’t name a single claim in the Blue Water patents or explain how the defendants’ product infringes on any of the elements of the claims.  Instead, it alleged that defendants’ devices were “virtually identical” to Blue Waters’.  That wasn’t enough.  

Initial interest confusion: The use of Ultraslim on defendants’ website allegedly created a likelihood that when an internet user searches “Ultraslim” they’ll get a “hit” for the defendants’ product. [That isn’t even alleging that the user is confused!]  The Eleventh Circuit has suggested that confusion that is remedied before purchase isn’t actionable.  The complaint also alleged that “several clients have complained that the Vevazz device and system is substantially less expensive, and sells for approximately 10% less of the Blue Water device and system, as the Vevazz product is a cheaply made ‘knock-off.’ ” Thus, the allegations of the complaint showed that customers are able to identify the difference between the two products (the cheap one apparently sells for thousands of dollars!), so there is no evidence of confusion. That was fatal to a likely confusion claim.