Wednesday, October 28, 2009

Precedential No. 43: TTAB Enters Partial Summary Judgment in 2(d) "VUDU" Opposition

Applicant Vudu, Inc. failed to ward off completely Hewlett-Packard's motion for summary judgment aimed at the mark VUDU for goods and services in classes 9, 35, 38, 41, and 42, relating to the broadcast, storage, and playback of video content. H-P relied on its registered mark VOODOO in standard character and design form (shown immediately below), for personal and gaming computers in class 9, and for computer manufacture and design services in classes 40 and 42. The Board found confusion likely as to Applicant's class 9 goods, but genuine issues of material fact prevented entry of summary judgment as to its services. Hewlett-Packard Development Company, L.P. v. Vudu, Inc., 92 USPQ2d 1630 (TTAB 2009) [precedential].

There was no real dispute as to the similarity of the marks VUDU and VOODOO. Applicant's arguments about the different ways in which the party's marks are displayed was, of course, irrelevant. Therefore, the key issue was: guess what?

Class 9: Applicant's class 9 goods included "computer software for use in computers for the transmission, storage and playback of audio and video content." H-P's registration was "not limited to specific types of personal and gaming computers or to specific channels of trade" and so the Board presumed that H-P's goods "encompass computers which would use applicant's computer software for use in computers for the transmission, storage and playback of audio and video content." Applicant Vudu did not contest the assertion that consumers could use its software in H-P's computers.

Vudu lamely argued that there is no relationship between its set-top boxes and H-P's computers because "the set-top boxes have a specialized application, and allow consumers to stream high quality video content to their televisions." The Board observed that while this restriction "may be implicit in the identification of other goods or services in applicant's identification, but it is not reflected in the identification of the computer software ...." In short, as the Board observed for the millionth time, the determination of likelihood of confusion must be based on the goods as identified in the application, regardless of what the record may reveal as to the particular nature of the goods.

The Board therefore granted H-P's summary judgment motion as to Vudu's class 9 goods.

Classes 35, 38, 41, 42: The Board found that Vudu's recited services "have no obvious relationship to the goods and services in the pleaded registration." In fact, H-P "presented no evidence on this point," but merely alleged that consumers could find both parties' services on the Internet. "However, countless products and services can be found on the Internet and in the circumstances of this proceeding, this is not sufficient to show the absence of a genuine issue as to the relatedness of the goods and services."

And so the Board denied the other four-fifths of the summary judgment motion.

TTABlog comment: What makes this decision precedential, I wonder?

This case reminds me of a joke I once made. A friend a mine asked me if I wanted to watch a zombie movie on television, and I replied, "I Haiti that kind of movie, but I'll watch if voodoo." LOL !!! Sometimes I just crack me up.

Text Copyright John L. Welch 2009.


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