Buddy, can you spare a TRO? No injunction for overlapping use of “big” and “hunting”

Enerco Group, Inc. v. Deutsch, No. 16CV213, 2016 WL 852572
(N.D. Ohio Mar. 3, 2016)
Enerco sued Deutsch for false advertising and trademark
infringement.  Enerco makes portable
propane heaters called “Buddy Heaters,” used by outdoorsmen and fishermen in
enclosures like tents, cabins and ice huts.  Enerco’s registered marks include Portable
Buddy, Hunting Buddy, and Big Buddy.  Buddy
Heaters contain a safety feature, called an oxygen depletion sensor (ODS),
which d shuts down the heater before dangerous levels of carbon monoxide can
build up within an enclosed space. Buddy Heaters are certified by the Canadian
Standards Association (CSA) for gas-fired portable heaters, not for use as
cookers.  Enerco developed a warming tray
for heaters, but abandoned the idea because it was foreseeable that consumers
would use the tray to cook food, which could interfere with the heating element
and the functionality of the ODS, or tip over and harm the consumer or cause a
grease fire.
Deutch sells a “Grill Attachment for Portable Heaters,” the
Hotrack, and has applied for a patent.  Enerco
(implausibly) alleged that Deutch’s use of an image of Enerco’s heater in his
patent wrongfully conveyed endorsement, sponsorship and affiliation, and also
challenged Deutch’s use of Enerco’s heater in his ads.  Enerco alleged that the Hotrack posed a
safety hazard to consumers.  Deutsch’s
website states that Hotracks “are available in 3 different sizes to fit popular
models of portable propane heaters;” “create a stable heating surface;” “can
hold up to five pounds of weight when attached to a portable heater;” can be
used to “[c]ook hot dogs, brats, frozen pizza, grilled sandwiches, and much
more on Hotrack’s food safe surface;” and can be “the perfect ice fishing
companion. Pour heated water down the hole to keep it free of ice.” 
Enerco alleged that these statements falsely implied that the
Hotrack grill attachment was safe for cooking various foods and for consumer
use in conjunction with the Buddy Heaters, despite the safety risks caused by
cooking greasy foods near an exposed propane flame, and the tipping hazard when
the rack is not level or when the weight on it exceeds 5 ½ pounds, and the
possibility of burns and of melting the heater’s handle. Enerco argued that
Deutch failed to disclose the potential danger of interfering with the
functioning of the ODS, when, according to the ODS manufacturer, “Even the
smallest amount of grease or debris could damage the functionality of the ODS.”
Further, Enerco alleged that the names “Big Hotrack” and
“Hunting Hotrack” associated Deutch’s product with Enerco’s, threatening its business
reputation and goodwill.
Deutch responded that he used a disclaimer on the Hotracks
website: “Hotracks has no affiliation with Enerco and its affiliates and …
Enerco will not be liable for any issues with Hotracks.” He also responded that
Hotracks did fit most popular portable propane heaters; that they did create a
stable heating surface; that they could hold more than five pounds; and that he
conducted tests on all three Hotrack models with a seventeen-pound weight and
none tipped over.  Further, Deutch’s
directions gave adequate safety warnings according to him, including: to ensure
that the rack was level; not to allow grease spatter to come in contact with
the heating element; to use no more than 5 pounds; etc.  Deutch averred that he had received no
complaints, and that customers’ favorable internet postings encourage others to
Google “HotRack LLC,” and not “Enerco” or “Buddy Heater.”  Finally, “[a]ll Hotracks have a grease shield
(referred to on the specifications as a ‘deflector plate’) that covers the area
directly above the heating element and oxygen depletion sensor (ODS) for the
heaters they latch on to,” which should protect the functionality of that
safety feature.
Given the factual disputes, Enerco didn’t show a strong
likelihood of success on the merits of its false advertising claim.
As for trademark infringement, though Enerco had
registrations for Hunting Buddy and Big Buddy, Deutch argued that his use of
“Hunting” and “Big” to describe the size of his Hotracks was fine.  The parties offer related goods to the same
customers through similar purchasing channels, but there was no evidence of
actual confusion.  The parties both
pointed to a post on an online ice fishing forum:  “I made only 1 purchase this year. I bought
the hot rack that is custom made for buddy heaters. Nice and sturdy, nice
welds, food grade metal. $25 for clean safe food. Google hot rack llc if
interested.”  What this post showed was
that the customer understood the truthful fact that Deutch’s racks were made
for use with Enerco’s heaters, not that the customer was confused.  As for the use of “Hunting” and “Big,” the
court noted that Enerco’s registration for Hunting Buddy disclaimed “Hunting,”
which made its claim to control “Hunting Hotrack” weak; likewise, “Big” was a
generic adjective and a descriptive term which is unlikely, standing alone, to
support a Lanham Act violation.  Deutch
never used the term “Buddy” in his ad.
The disclaimer, along with a post from Deutch in response to
an internet inquiry, “I am not affiliated with Mr. Heater/Enerco nor are they
liable for my product,” also mattered. 
Enerco argued that a website disclaimer didn’t reduce confusion as a
matter of law, but the court reasoned that this was an issue to be resolved
later, not at the TRO stage.
The court didn’t even mention the patent-related claim, which
is about all the attention it deserved.

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