Plaintiff AR Pillow, Inc., makes pillows designed to reduce acid reflux in infants.
Defendant Annette Cottrell owns pollywogbaby.com, is a former distributor of plaintiff’s pillows, and sells pillows that compete with plaintiff’s pillows.
Plaintiff sued Ms. Cottrell for trademark infringement, unfair competition, and defamation arising out of her use of plaintiff’s AR PILLOW trademark on her Web site along with the statements that she had “chosen to discontinue the product” and that the plaintiff’s pillow requires babies to bend their legs, which AR Pillow claims is false.
Plaintiff moved for a temporary restraining order or preliminary injunction seeking to stop such use.
On March 13, Western District Judge Richard Jones denied the motion, finding AR Pillow was not likely to succeed on the merits of its trademark infringement claim. In short, the court found there wasn’t much in Ms. Cottrell’s Web site that was likely to cause confusion with plaintiff’s trademark.
For example, on the “actual confusion” likelihood of confusion factor, the court noted: “Here, plaintiffs argue that there is evidence that at least one customer was actually confused by defendant’s use of the mark on her website. Plaintiffs allege that they ‘received a call from a customer seeking to cancel an order from an AR Pillow from pollywogbaby.com.’ Nothing in this allegation suggests that the customer was confused. Rather, it suggests that she was not confused because she knew that AR Pillow was different than pollywogbaby.com. Receiving unfavorable information about a product is not the same as consumer confusion.”
The case cite is AR Pillow Inc. v. Cottrell, No. 11-1962 (W.D. Wash. March 13, 2012) (Jones, J.).