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PlayNation served Velex with a complaint that stated Velex was infringing on PlayNation’s trademark. The district court ruled in PlayNation’s favor. The court employed seven factors when making the determination: the strength of the plaintiff’s mark; the similarity of the marks; the similarity of the products the marks represent; the similarity of the parties’ retail outlets and customers; the similarity of advertising media; the defendant’s intent; and actual confusion.
The court ruled that the use of the trademark by PlayNation is strong, descriptive and suggestive because the mark is suggestive it enjoys greater protection. The mark is also incontestable, presumed to be at least descriptive with secondary meaning, which supports the belief of the strength of the mark. On this point, the court sided with PlayNation.
The court believes that the two marks are exceedingly similar, from the wording to the art and size of the gorilla used in the mark. Velex argued that their mark reads ‘Gorilla Gym’, while PlayNation reads ‘Gorilla Playsets’ the difference in the word was not enough for the court to find any significant difference in the marks, therefore, the courts’ decision on this point was not incorrect and found in favor for PlayNation.
Both PlayNation and Velex sell a variety of playthings geared toward children. PlayNation selling outdoor and Velex selling indoor products. Using the metric the court has employed, the public can attribute both products to a single source, as a result, it supports the district court’s findings.
There are several parallels in the retail outlets each company uses to distribute their product. Velex attempted to argue that because PlayNation sells through dealers the retail outlets between the two companies are dissimilar, however, the court still found that there is a likelihood of confusion still exists as well both companies used similar methods of advertising.
PlayNation provided evidence of consumers who purchased a PlayNation set but contacted Velex for servicing and customer support needs. Although PlayNation did not provide many instances of this the court ruled that the instances of confusion that occurred are the most significant.
Velex, in the appeal, attempted to introduce new factors one that Velex held a valid federal trademark that covered the products and secondly there was no survey evidence suggesting consumer confusion. The court declined to agree or consider either point.
Velex’s trademark was canceled and they were ordered to pay damages to PlayNation. The district court ruled that Velex willfully infringed on PlayNation’s trademark because of the continued sale of its products after the complaint was filed.
Of the two elements required to cancel the trademark, PlayNation was able to show both. Therefore, the district court did not abuse power in its ruling to cancel Velex’s trademark. There has been abundant evidence demonstrating the infringement on PlayNation’s trademark by Velex.
The damages Velex was ordered to pay was vacated and remanded. There was an abuse of discretion by the district court.
The final ruling in the appeal affirmed in part, vacated and remanded in part. Velex was not able to regain their trademark, Velex is no longer required to pay damages to PlayNation.
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