Seattle Trademark Lawyer

Screen shot showing Loops’ “non-shank” prison toothbrushes

STL readers may recall the Western District case of Loops, LLC v. Phoenix Trading, Inc., in which the plaintiff accused the defendant of violating the Lanham Act (among other claims) when the defendant bid to sell flexible “non-shank” toothbrushes to the New York City Department of Corrections.

Phoenix Trading, d/b/a Amercare, moved for summary judgment on Loops’ Lanham Act claim.

Here’s Western District Judge Ricardo Martinez’s summary of the claim.

“Loops describes the factual basis of its claim as follows: ‘In June 2006, unbeknownst to Plaintiffs, Defendants bid on a contract to supply the [NYC-DOC] with Loops Flexbrush toothbrushes. Plaintiffs did not have notice, did not provide their approval or consent to Amercare to bid on the contract, and did not have any agreement to supply Amercare with Loops Flexbrush toothbrushes to NYC-DOC. As a result, Amercare bid Loops Flexbrush toothbrushes with the intent to supply the toothbrushes directly.’”

The court found these facts could not sustain a Lanham Act claim.

“Crediting Loops’s version of the facts, the evidence merely shows that Amercare offered to provide the Loops Flexbrush to NYC-DOC in 2006 when, in fact, it had no ability to do so because Loops had not agreed to allow Amercare to distribute its products. There is no evidence that Amercare ever provided toothbrushes to NYC-DOC in 2006 falsely designated as Loops Flexbrushes. Nor is there evidence that NYC-DOC was confused or deceived. In any case, Amercare did not win the 2006 bid and Loops did not suffer injury caused by Amercare’s 2006 bid.

“Alternatively, Loops argues that Defendants’ ‘unfair competitive practices’ of soliciting samples of Loops Flexbrushes, copying them, and using the copies to bid against Loops, violate the Lanham Act. This is unpersuasive. When Amercare bid on the NYC-DOC contract in 2007, it offered to provide the Amerfresh toothbrush. The bid documents indicated that Amercare was offering to provide the Amerfresh toothbrush, the toothbrushes were labeled ‘AmerCare’ and the packaging was labeled with ‘AmerCare.’ There is no possibility that NYC-DOC wasa confused regarding the origin of Amercare’s toothbrushes. While Loops objects to what it characterizes as the ‘slavish copying’ of its Flexbrush, the Lanham Act offers no protection. As the Supreme Court has stated, ‘unless an intellectual property right such as a patent or copyright protects an item, it will be subject to copying.’”

The case cite is Loops, LLC v. Phoenix Trading, Inc., 2010 WL 3041866, No. 08-1064 (W.D. Wash. July 20, 2010) (Martinez, J.).