Grayson O Company, a haircare product manufacturer and holder of a registered trademark, brought trademark and unfair competition action against Agadir International LLC, a competitor haircare product manufacturer. The district court granted summary judgment to Agadir, finding that Grayson O had failed to show the marks were likely to be confused. Appeal court affirmed.<\/p>\n
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Grayson O sells products designed to protect hair from heat during styling. The company owns a federal trademark registration for the mark \u201cF 450\u201d. The registered mark is not stylized and does not claim to protect \u201cany particular font, style, size, or color\u201d. Although the registered mark contains no degree symbol, the product labels on which the mark appears do contain a degree symbol; the labels also contain a lowercase \u201cf,\u201d a stylized \u201c450,\u201d and almost no space between the \u201cf\u201d and \u201c450\u201d. On its website, Grayson O refers to its products as \u201cf450\u00ba\u201d or the \u201cfahrenheit 450\u00b0 Line\u201d.<\/p>\n
Agadir sells a product called \u201cHair Shield 450\u00ba Plus\u201d or \u201cAgadir Argan Oil Hair Shield 450\u00ba Plus,\u201d depending on how one reads the label. The \u201c450\u201d on Agadir\u2019s label is not stylized. Both Grayson O and Agadir sell their products exclusively at salons, which means their direct customers are salon professionals who then sell the products to their clients.<\/p>\n
On December 13, 2013, Grayson O initiated lawsuit, alleging that Agadir infringed on its trademark and engaged in unfair competition in violation of the Lanham Act and North Carolina law. The district court found that Grayson O had failed to show a likelihood of confusion between the marks. In particular, the court held that Grayson O\u2019s mark was conceptually and commercially weak, that the marks were not similar, that there was no evidence of Agadir\u2019s intent to infringe on Grayson O\u2019s mark, and that there was only de minimis evidence of confusion.<\/p>\n
If a mark lacks strength, a consumer is unlikely to associate the mark with a unique source and consequently will not confuse the allegedly infringing mark with the senior mark. A mark\u2019s strength comprises both conceptual strength and commercial strength. \u201cMeasuring a mark\u2019s conceptual or inherent strength focuses on the linguistic or graphical \u2018peculiarity\u2019 of the mark, considered in relation to the product, service, or collective organization to which the mark attaches.\u201d<\/p>\n
Grayson O asserts that its mark is suggestive, and Agadir does not argue to the contrary. But the court did not agree that the Grayson\u2019s mark is conceptually strong. In this case, Agadir has presented numerous instances of other uses of \u201c450\u201d in the haircare industry, including some that were in use or registered prior to Grayson O\u2019s registration of its mark. If Grayson O\u2019s mark was \u201ctruly a distinctive term, it is unlikely that\u2026 many other businesses in the haircare industry would independently think of using the same mark or similar variants of it.\u201d That so many have done so indicates that \u201c450\u201d and the variation \u201cF 450\u201d are not conceptually strong.<\/p>\n
In determining the commercial strength of a mark, a court considers whether \u201ca substantial number of present or prospective customers understand the designation when used in connection with a business to refer to a particular person or business enterprise\u201d. The district court explained, Grayson O\u2019s sales and advertising expenditures were \u201cminimal\u201d when compared to the \u201cmulti-billion dollar hair care industry\u201d.<\/p>\n
Furthermore, Grayson O offered no evidence of \u201cunsolicited media coverage,\u201d \u201cattempts to plagiarize the mark,\u201d or \u201cconsumer studies linking the F 450 mark or the \u2018450\u2019 term to Grayson O,\u201d despite the fact that Grayson O has been using the mark for four years. The court found that Grayson O\u2019s mark was both conceptually and commercially weak. The only textual similarity between Agadir\u2019s label and Grayson O\u2019s label is \u201c450\u00ba,\u201d and the only textual similarity between Agadir\u2019s label and Grayson O\u2019s registered mark is \u201c450.\u201d<\/p>\n
In sum, Grayson O has failed to show a likelihood of confusion between its mark and Agadir\u2019s mark because \u2013 despite the similar facilities, advertising, and quality of the products \u2013 Grayson O\u2019s mark is weak and differs in appearance from Agadir\u2019s mark. Grayson O presented no meaningful evidence of intent to infringe or actual confusion. Given such a record, the district court did not err in granting summary judgment to Agadir. The judgement of district court has been affirmed<\/a>.<\/p>\n","protected":false},"excerpt":{"rendered":" Grayson O Company, a haircare product manufacturer and holder of a registered trademark, brought trademark and unfair competition action against Agadir International LLC, a competitor haircare product manufacturer. The district court granted summary judgment to Agadir, finding that Grayson O<\/p>\n