Mytee Prods., Inc. v. Shop Vac Corp., No. 13cv1610 BTM (BGS), 2013 WL 5945060 (S.D. Cal. Nov. 4, 2013).

A California district court denied the plaintiff’s motion for a preliminary injunction in a trademark infringement action, reasoning that the plaintiff did not clearly establish a likelihood of consumer confusion.

The plaintiff Mytee Products, Inc. manufactures and sells commercial cleaning machines, including “air movers” (described as fans used to dry wet or flooded environments), under the plaintiff’s MYTEE registered mark. The plaintiff first used the mark in commerce in 1993. The defendant Shop Vac Corporation began selling air movers in 2013 under the name “MIGHTYmini” and also intends to sell air movers under the name “MIGHTY MICRO.” Not surprisingly, this made the plaintiff mighty upset.

On the plaintiff’s motion for a preliminary injunction, the court engaged in a thorough analysis of the plaintiff’s likelihood of success on the merits. The court considered the eight factors generally applied in the Ninth Circuit to determine if there is a likelihood of consumer confusion: “similarity of the conflicting designations; relatedness or proximity of the two companies’ products or services; strength of [the plaintiff’s] mark; marketing channels used; degree of care likely to be exercised by purchasers in selecting goods; [the defendant’s] intent in selecting its mark; evidence of actual confusion; and likelihood of expansion in product lines.”

While some of the factors favored the plaintiff such as the identical sounds and meanings of the MYTEE and MIGHTY marks and the direct competition of the parties’ products, the court found that there were some mighty factors favoring the defendant as well. One important factor was that the defendant’s MIGHTYmini and MIGHTY MICRO marks contain additional words meaning small that play against the word “mighty” by juxtaposition. Another important factor was the high price of these machines. At a retail price ranging from $70 to $300, the court concluded that consumers would exercise a high degree of care in making a purchase of these machines. Further, there was no evidence that the defendant intended to deceive the public by selecting its marks, nor was there evidence of actual confusion. Overall, the court concluded that the plaintiff did not show a likelihood of consumer confusion over the parties’ marks for air movers.

As the court was less than moved by the plaintiff’s claims at this stage of the case, it denied the motion for a preliminary injunction.

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