Maybe you've heard of a new AT&T LTE handset from HTC called the Vivid. Maybe you haven't. Either way, HTC has gotten itself in a bit of hot water using such a risqué name on the blazing fast beast. By whom, you ask? Why, adult entertainment company Vivid Entertainment, of course.
Vivid is threatening HTC with a possible trademark infringement suit if the name of the device isn't changed. When asked about the suit, HTC had this to say:
We are reviewing the complaint and don't expect to have any further comment until it is resolved.
Yeah... typical public relations crap. Of course, Vivid does have a point - for the porn obsessed, this naming could lead to a rather disappointing outcome when they find out the device isn't porn optimized.
In retrospect, if HTC would've stuck with the same name as the Korean version of the device, it would probably be dealing with a similar situation from the city of Oakland.
You probably should've just stuck with Holiday, HTC. On second thought, a certain hotel chain may have objected to that. I guess there's just no winning this one.
- Strength of the mark: Vivid's porn trademark may be recognized by hundreds of thousands (possibly more - if they can get people to admit to it), but it's not something you're ever going to see in much mainstream advertising.
- Proximity of the goods: Unless Vivid can concretely demonstrate they plan on making smartphones or porn-optimizing smartphones some time soon, there's obviously no relation between the market for the HTC Vivid smartphone and Vivid, Inc.'s porn movies. A smartphone app or mobile-optimized site will not constitute proximity of goods.
- Similarity of the marks: Given that they use the exact same word, there's clear similarity, though HTC's smartphone obviously has the very well-recognized HTC mark attached to it, providing some level of facial distinction.
- Evidence of actual confusion: This is where Vivid will completely fail. Unless they can provide actual evidence of confusion (surveys), there's no way they'll show a likelihood of confusion - I can guarantee you they won't.
- Marketing channels used: Unless Vivid starts advertising porn on (non-late night) television, mainstream websites, or magazines (or HTC starts advertising phones in porn), the two products exist in very different marketing channels.
- Type of goods and the degree of care likely to be exercised by the purchaser: No one is going to buy a $500+ smartphone on the sole belief that it is somehow related to an adult film company. People exercise considerable care when purchasing such an item.
- Defendant's intent in selecting the mark: It's unlikely Vivid can prove HTC had any intent to confuse consumers by "hijacking" Vivid's mark for a phone. If anything, this might decrease sales of the product in certain markets.
- Likelihood of expansion of the product lines: Vivid will probably not be making smartphones any time in the future. HTC will likely not be making porn.
There's not a case here - Vivid is just trying to get attention from the media, it's a publicity stunt. If Vivid honestly thinks they have a case, someone should probably fire their chief legal counsel.