Kinbook, LLC developed an application available on Facebook intended to allow the sharing of online messages, photos and videos among friends and family. The application allows users to create private "sub-social" networks and upload data to offsite storage.
After learning that Facebook had aggressively opposed trademark applications for "_____Book" formative marks for applications connected with Facebook, Kinbook decided to name its Facebook application "Kinbox" and "Munchkinbox" (the latter being for use by children and their family).
Kinbook launched its application on Facebook in December 2009 and its marks were registered with the PTO in September 2010.
In November 2010, Microsoft released the "Kinect" gaming sensor for use in connection with its XBOX 360 console. The "Kinect" is a hardware sensor that allows a user to operate and interface with the XBOX 360 using gestures and spoken commands.
Also, in April 2010, Microsoft launched a new line of mobile smartphones known as "Kin One" and "Kin Two." Two months later, Microsoft announced that it would cease production of the "Kin" phones.
Claiming that Microsoft's "Kinect" mark was confusingly similar to its "Kinbox" mark, Kinbook sued Microsoft for unfair competition and reverse trademark infringement under the Lanham Act. Microsoft moved for summary judgment and the District Court granted its motion.
The District Court's opinion contains no surprises or new statements of law but is still a worthwhile read for its resolution of the likelihood of confusion question in a concise and straightforward manner that is peppered with a sense of humor.
One example is the court's discussion regarding the "sophistication of the consumers" factor of the likelihood of confusion analysis. According to Microsoft, its target audience for XBOX 360 users is 5 to 80 years of age, which led Kinbook to argue that the court should look to the least sophisticated consumer, namely, the 5-year-old, who could easily confuse "Kinbox" and "Kinect." The District Court was not impressed with the argument:
First, it would be completely unreasonable to assign a 5 year-old as "the reasonably prudent purchaser" for the purposes of this analysis. No matter what else the ever-remarkable current-day precocious 5 year-old can accomplish, this Court cannot fathom a 5 year-old with either the faculties or the financial means to independently purchase a retail item costing hundreds of dollars. Second, even the hypothetical precocious 5 year-old dispatched by indulgent parents (or grandparents) to make her or his own selections of amusement would likely be able to distinguish between a free software application, and a $150 piece of gaming hardware.
The court also rejected the argument that the fact that the parties both marketed their products on the internet, and specifically Facebook, increased the likelihood of confusion, noting that "advertising on the internet and, more specifically, on Facebook has become vast and indiscriminate, and 'virtually every business today' uses the internet and Facebook for marketing purposes."
The case cite is Kinbook, LLC v. Microsoft Corp., No. 10-4828 (E.D. Pa., Jan. 24, 2012).