Plaintiff and Defendant manufacture microphones (pictured above, plaintiff’s on the left). Plaintiff define its trades dress as:
(1) two vertical bars on either side of the microphone with two circular enclosures near the top and bottom, (2) a small portion of the microphone’s mesh protruding above the top circular enclosure, and (3) a threaded adapter with rounded hinges and a tapered bottom containing the microphone’s cord port.
Court finds that plaintiff didn’t show secondary meaning and denies prelim. I am a little puzzled by this discussion, however, after the court notes that plaintiff failed to submit a survey:
“Instead, Audio-Technica repeatedly and emphatically points to writings by online reviewers and commentators that Audio-Technica argues demonstrate a likelihood of confusion. However, these writings support the opposite conclusion at least as much as they support Audio-Technica’s desired conclusion, if not more so. The online reviewers and commentators variously observe that the BX2020 is a “knockoff” or a “clone” of the AT2020 and that it was an “absolutely shameless” copy. (Mot. 8–11.) These reviews indicate that writers and readers understand very well that the AT2020 and the BX2020 are manufactured by different producers, supporting the absence of confusion. See JL Beverage Co. v. Beam, Inc., 899 F. Supp. 2d 991, 1005 (D. Nev. 2012) (finding evidence of consumers noting the goods look alike showed a lack of confusion, as consumers understood the goods were distinct products). No reviewer was under the impression that the two microphones came from the same manufacturer; instead, they were all well aware that the microphones were made by two different manufacturers, and one of the purposes of the reviews was to describe the differences between the two microphones. For these reasons, the online reviews do not demonstrate a likelihood of confusion. ”
First, some of these online reviews might constitute evidence of secondary meaning. Also, an online reviewer, who is knowingly discussing defendant’s product, does not represent a consumer encountering these products in the marketplace.
Text of Audio Technica v Music Tribe, CD Call May 5 2022: