Published by LawTechie - January 11, 2013 - LawTechie

intellectual property attorneyBecause small companies suing big companies over some seriously tenuous claims of trademark infringement brings lots of settlement money (no it does not), Kinbox LLC, the developer of the Facebook Kinbox platform which has all of 16,750 subscribers, decided to sue Microsoft for trademark infringement over the use of “Kin” and “Box” on Microsoft’s Kinect product for the XBox. Confusing right?

No, the 3rd Circuit didn’t think so either.

The facts: Kinbox used the trademark first (it launched in 2009). So when Microsoft launched Kinect in… well recently, Kinbox decided that it struck gold. The lower district court disagreed, finding that consumers are very unlikely to confuse the developer of the world’s largest gaming platform with a company who owns a modestly popular Facebook application… plus the names don’t even sound all that similar.

For some reason, Kinbox appealed.

The 3rd Circuit said, “No, it is quite unlikely that the 16,750 users of Kinbox would be confused into thinking that the Facebook application was built by Microsoft.” (I am paraphrasing.) Kinbook, LLC v. Microsoft Corp., 12-1488 (3d Cir., Jan. 10, 2013).

This is an interesting case because the plaintiff tried to use the doctrine of reverse confusion to argue that the bigger company’s subsequent use of a confusingly similar mark would cause Kinbox users to associate that product with the bigger company. I typically root for David in these types of fights, but in this case Goliath seemed the saner party.

LawTechie is a blog focusing on trends in tech and digital media. Areas covered include intellectual property, cyberlaw, venture capital, transactions and litigation as they relate to the emerging sectors. The blog is edited by the firm's partner Tim Bukher with contributions from the firm's experts in their respective areas of law.


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