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.

from Blogger

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