A Variant Of The Tautological Problem WIth "Natural Areas Of Expansion"
Softbelly sold SCREENIE BEANIES, bean bag toys with chamois bellies to be used in wiping a computer screens.
Softbelly’s objects to the judge’s having permitted Ty to present evidence of “Beanie” products that Ty marketed after “Screenie Beanies” entered the market. Obviously those products could not be used to show that the “Beanie Babies” trademark was in use before “Screenie Beanies” was, but they could be used as evidence of the likelihood that consumers would be confused about the source of “Screenie Beanies.” Carnival Brand Seafood Co. v. Carnival Brands, Inc., 187 F.3d 1307, 1311 n. 4 (11th Cir. 1999). The greater the variety of products to which “Beanies” or “Beanie Babies” is attached, the likelier it is that consumers would assume that a new “Beanie” product that closely resembled “Beanie Babies” was also made by Ty.
And may therefore be the reason plaintiff choose to enter that particular new area at that particular time.
Ty v Softbelly (7th Cir Feb 2 2008). Also, interesting discussion of witness tampering by Ty. Also litigation that BEANIE is generic for bean-bag plush toys is left for another day.