Be Careful When You're Flinging Those "X's" Around

Back in college, I was an advertising and journalism major.  At one point, I thought I'd become an advertising copywriter or go into print advertising.  Instead, I watch Mad Men.  That said, I was forced to take a communications law class which I loathed.  As I look back, I have to admit it was probably one of the more useful classes I took in college.  I did learn a thing or two.

For one, I know the trademark infringement lawsuit Exxon Mobil Oil filed against cable network FXX Tuesday is absurd.  

It's unlikely that even the most idiotic person would confuse Exxon Mobil Oil & the recently launched cable network FXX.  They aren't even competing in the same industry (one of the hallmarks of trademark infringement.)  And I doubt that FXX was trying to "trick" Exxon consumers into becoming accidental viewers of their network. What's next, Exxon?  Going after FedEx for stealing your "Ex?"

The case is now in the hands of U.S. District court in Houston.  

A statement released by FXX stated: 

"We are confident that viewers won’t tune into FXX looking for gas or motor oil and drivers won’t pull up to an Exxon pump station expecting to get ‘It’s Always Sunny in Philadelphia.”

Still waiting for Exxon's comeback on that one.

Under trademark law, they use the terms 'confusingly similar' and 'likelihood of confusion' to determine if there has been a trademark infringement.  

 According to MarkLaw.com, multiple determining factors include:

(My comments in red.)

• Whether or not the goods or services using the same mark compete with one another.
• Um, no.
• Whether or not the goods or services are so closely related that they are being marketed through the same stores or channels of distribution.
• Gas pump vs. television station.  Hmm.  Not very related.
• Whether or not the alleged infringer intended to trick consumers in order to "cash in" on the plaintiff's business good will.
• Yeah, I'm sure FXX had tricksters on staff to gain viewers from that pesky oil company.
• Whether the marks are similar in appearance, phonetic sound, or meaning.
• You can't trademark a letter and even a font is somewhat hard to argue.  Exxon has two syllables while FXX has three letters.  They don't even sound alike. 
• The legal strength of each of the marks. The greater the public recognition of a mark as a source identifier, the more likely that similar uses will be confusing.
• Exxon's only chance, in my opinion may be:  If they can prove that oil consumers and/or investors somehow thought Exxon was in some way affiliated with the launch of FXX and this supposed confusion hurt Exxon financially and/or harmed their corporate reputation or integrity.
• Whether there has been any actual confusion. If so, this is not conclusive evidence of likelihood of confusion, but must be weighed together with the other factors.
• Only time will tell...  
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• Copyright ©2013 by KLiedle