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Key Data Points Twitter Followers 5. Similarweb Unique Visitors Majestic Referring Domains Plaintiff alleges it will suffer irreparable harm if a preliminary injunction is not granted because of the likelihood of confusion among consumers arising from the contemporaneous marketing of the parties' heat-activated hair-care product lines.
Citing Mutual of Omaha Ins. Novak, F. Plaintiff also alleges that damages alone are insufficient compensation for defendants' infringement.
Plaintiff has made no showing of any decreased sales of its "Intensives" line since defendant introduced its "ThermaSilk" line. The only evidence before the court concerning sales of plaintiff's products is the deposition testimony of Heidi Jo Norman, plaintiff's Director of Marketing.
The court was unable to find any information on the total sales of the other three products in the "Intensives" line that contains "ThermaSilk Complex. These numbers indicate that sales from the "Intensives" line, and especially those products containing the "ThermaSilk Complex," compose a very small portion of plaintiff's total revenues.
The record is devoid of evidence of any loss of sales of plaintiff's products. Indeed, any decrease in plaintiff's sales resulting from defendants' launch of its "ThermaSilk" line is purely speculative at this time. See also General Mills, Inc.
Kellogg Co. However, as detailed below, plaintiff at best has shown that a factual question exists concerning the likelihood that consumers will be confused by the competing products involved in this case and at worst has failed to establish any likelihood of confusion as a result of defendants' alleged infringement.
The court therefore concludes that plaintiff will not be irreparably injured absent a preliminary injunction. While this alone is sufficient to deny the injunctive relief sought, the court will also discuss the remaining Dataphase factors. Dataphase, F. The essential inquiry in weighing the equities is whether the balance tips decidedly toward the movant.
General Mills, F. Here, plaintiff contends that defendants have been using the "ThermaSilk" mark for only a short time. Because defendants will retain the right to sell heat-treated hair care products using a different mark, such as "ThermaSil," plaintiff argues that the balance of harms tips decidedly in its favor. The court, however, disagrees.
Declaration of Andrew Gross Docket No. In addition, 98 percent of Helene Curtis' retail accounts have accepted all thirteen items in the "ThermaSilk" line. Helene Curtis has expended and will continue to spend substantial sums in the development and promotion of the "ThermaSilk" line in the hopes of realizing substantial profits in the future. The court has been presented with powerful evidence of the substantial negative effect a preliminary injunction will have on revenues from the sale of the "ThermaSilk" line.
A preliminary injunction prohibiting the use of the "ThermaSilk" mark on any packaging, advertising, or other materials would force Helene Curtis to recall the "ThermaSilk" line from store shelves. Due to the competitive nature of the industry, retailers would immediately fill the shelf space made available by the recall with other competitive products and Helene Curtis would have a difficult time regaining that space.
Helene Curtis also claims that its relationships with key customers such as Wal-Mart and K-Mart would be damaged, its reputation as a reliable supplier would be irreparably injured, and its ability to bring new products to the market in the future hindered. While all of these dire consequences may not come to pass, there is certainly substantial evidence that a preliminary injunction would inflict substantial harm on defendants.
In contrast, plaintiff has failed to make a specific showing of the damages it will incur if a preliminary injunction is not granted. Plaintiff makes broad statements of the irreparable harm it will suffer due to the possibility that consumers will confuse the different products.
Plaintiff has not, however, proffered any evidence of decreased sales of its own products. Under the third Dataphase requirement, plaintiff must establish a substantial probability of success on the merits. Because all of plaintiff's claims arise out of the manufacture, promotion, and sale of hair care products by defendants under the "ThermaSilk" mark, the parties have focused their analysis on plaintiff's federal unfair competition claim under Section 43 a of the Lanham Act.
That provision provides that:. In order to prevail on its Lanham Act claim, plaintiff must show both that it has a protectible mark and that defendants' subsequent use of that mark is likely to cause confusion. See General Mills, F. To establish a protectible mark, plaintiff must show that its use of "ThermaSilk" predated any use by defendants.
Defendants were notified on April 8, , that the "ThermaSilk" mark had been approved for registration. Plaintiff has never attempted to register the "ThermaSilk" mark, nor did it oppose plaintiff's registration of the mark.
Different courts have noted, however, that "[w]hile federal registration triggers certain substantive and procedural rights, the absence of federal registration does not unleash the mark to public use. The Lanham Act protects unregistered marks as does the common law. Carrie Beverage-Missouri, Inc. San Juan Pools of Kansas, Inc. In lieu of registration, a common-law trademark can arise from the adoption and actual use of a word, phrase, logo, or other device used to identify goods or services with a particular party.
First Bank v. First Bank System, Inc. Plaintiff contends that it has a common law trademark arising from its use of the "ThermaSilk" mark prior to defendants' use or registration of the mark.
Plaintiff began selling its "Intensives" line in June From that date forward, "ThermaSilk" has appeared on the packaging of four items in the "Intensives" line [12] and in promotional materials. Plaintiff points out that defendants affirmed under oath that they first used the "ThermaSilk" mark in commerce on December 22, Plaintiff therefore claims priority of use and common law ownership of the "ThermaSilk" mark.
Defendants respond that development of the "ThermaSilk" brand began in the Summer of In the Fall of that year, consumer focus group studies were conducted to measure consumer response to various "ThermaSilk" products and important retail customers were informed that Chesebrough intended to offer "ThermaSilk" products in the near future. Defendants contend that their market research and other pre-launch activities, conducted before plaintiff began selling its "Intensives" line, establishes their priority in using the "ThermaSilk" mark.
See Mem. Docket No. Trademark rights are acquired only by actual use of a mark in commerce in connection with the goods.
See Flavor Corp. Kemin Industries, Inc. Plaintiffs contend that defendants' pre-launch activities fall far short of being "open and notorious," as the focus groups, product testing, and customer development activities were conducted in secret.
Plaintiff contends that not until December 22, , over two years after plaintiff began selling the "Intensives" line in June , did defendants begin selling "ThermaSilk" products openly. The court has carefully considered the arguments of both sides and the declarations submitted to the court, and is not prepared at this time to determine which side might have priority of use.
Questions exist whether plaintiff has been using "ThermaSilk" as a mark independent from the "Intensives" mark or merely as an identifier of four ingredients composing a hair-care therapy. In addition, fact issues concerning the timing of defendants' pre-launch activities and how many people were aware of the "ThermaSilk" line prior to its formal introduction also exist.
These issues are central to who has rights to the "ThermaSilk" mark and which side will eventually succeed on the merits. The Eighth Circuit has consistently considered six factors in determining whether a likelihood of confusion exists: 1 the strength of the trademark; 2 the similarity between the parties' marks; 3 the products' competitive proximity; 4 the alleged infringer's intent in adopting the mark; 5 incidents of actual confusion; and 6 the type of product, its cost, the conditions of purchase, and the degree of care to be exercised by potential customers of the trademark holder.
Seven-Up Co. No single factor is dispositive. See Mutual of Omaha, F. The ultimate inquiry always is whether, under all the circumstances, there exists a likelihood of confusion between the plaintiff's trademark and the allegedly infringing use. The court will briefly examine each of the forementioned six factors. Whether a mark is entitled to protection is initially approached by categorizing the mark as generic, descriptive, suggestive, or arbitrary. These terms have specific meanings and a mark is entitled to varying protection depending on its classification:.
See also Duluth News-Tribune, a Div. Mesabi Pub. The court may also consider the degree of consumer awareness of the mark and the use of the mark on similar goods. Plaintiff claims "ThermaSilk" is a strong and distinctive mark, suggestive or arbitrary in nature, that is entitled to broad protection.
Plaintiff contends the term "ThermaSilk" has no independent meaning and the mark as a whole requires imagination to draw any conclusions about the nature of the product. While the court agrees that the term "ThermaSilk" does require some imagination to reach a conclusion as to the product's nature, it is more descriptive than suggestive.
A descriptive mark designates characteristics, qualities, effects or other features of a product. The term "ThermaSilk" is being used to describe a treatment which does good things for damaged hair.
Three other products in the "Intensives" line also list "ThermaSilk" as an ingredient. This is further evidence that plaintiff uses the term to describe the product. Indeed, the "Intensives" mark is the suggestive mark in this case, not "ThermaSilk. A descriptive trademark may still receive legal protection if the mark has an accepted secondary meaning. Mackay, F. Best Buy Co. See also First Bank, 84 F.
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