On January 17, online social networking company Kinbook, LLC, failed in its bid to unseat Microsoft trademark “Kinect.” The Third Circuit found that the two trademarks were not confusingly similar, rejecting Kinbook’s allegations that “Kinect” would confuse consumers and push “Kinbox” out of the market.
Kinbook’s mark actually predated Microsoft’s “Kinect.” Kinbook launched its Kinbox app in December 2009 on Facebook as a tool to allow users to share messages, videos, and pictures with friends and family. Microsoft did not release Kinect, a motion-sensor interface device for the Xbox, until November 2010. In response, Kinbook initiated a “reverse confusion” suit against Microsoft. Reverse confusion occurs when a commercially dominant company uses the trademark of a smaller company with senior rights in the mark. Reverse confusion suits are used to block the big company’s use of the mark, which often smothers the small company’s mark. Kinbook alleged that consumers who saw the highly advertised “Kinect for Xbox” product would be confused as to the source of “Kinbox.”
However, the two marks did not share much in common, as the trial court observed when it analyzed the two marks to determine whether consumers were likely to be confused by them. First, the marks did not look the same. “Kinbox” was written in orange and blue bubble letters, with the “i” and “o” drawn to resemble people. “Kinect” used plain font, not bubble letters, and was almost always accompanied in advertising by the famous lime green and silver “Xbox 360” mark. Second, “Kinbox” did not have market recognition; Kinbook admitted that consumers were not familiar with the mark and that it had not dedicated any significant effort to marketing the brand. Kinbook failed to produce any evidence that consumers had ever actually been confused by the two marks. Finally, no evidence suggested that Microsoft intended to confuse consumers by adopting the “Kinect” mark; it was likely entirely unaware of “Kinbox” when it adopted “Kinect” for its gaming console.
Thus, the court found that the marks were not likely to confuse consumers and affirmed the trial court’s summary judgment in favor of Microsoft.
This post was written by Lauren King. You can read more about Lauren here.