Another Judge Posner decision involving Ty, Inc., source of Beanie Babies. Plaintiff sold a few thousand plush camels under the name NILES. Defendant Ty then came out the next year with its plush camel named NILES and sold 2 million. There is a very long discussion as to why NILES is not a descriptive term for a plush camel.
Plaintiff alleged reverse confusion – instead of defendant attempting to pass off its product as that of plaintiff’s (defendant’s pickles in a barrel with plaintiff’s name), defendant attempts to pass off plaintiff’s product as it’s own (plaintiff’s pickles in a barrel with defendant’s name).
The significance of this case is that Judge Posner points out that a common articulation of reverse confusion is really not reverse confusion. When a large junior user adopts the mark of a small senior user, the senior user argues that it will be perceived as the copycat. However, as Judge Posner notes, this is not confusion as to source. It might be product disparagement.
Peaceable Planet v. Ty, 03-3452 (7th Cir. April 2, 2004)